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TERMS OF SERVICE

Last Updated on October 3, 2018

 

PLEASE CAREFULLY READ THE FOLLOWING TERMS OF SERVICE OF THE AOS GROUP, INC. AND ALL OF ITS SUBSIDIARIES, SUCCESSORS IN INTEREST AND ASSIGNS (COLLECTIVELY, HEREAFTER “AOS”, “ART OF SPORT”, “US”, or “WE”) BEFORE USING: www.artofsport.com, all related websites, products, services and mobile applications (collectively, the “AOS Services”), as well as all related websites, products, services and mobile applications, together the “Site”).

 

IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF SERVICE (THESE “TERMS”) PERIODICALLY. WE MAY REVISE THESE TERMS OF SERVICE AT ANY TIME WITHOUT NOTICE TO YOU. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THIS SITE.

 

NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER:  THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH THE COMPANY.  PLEASE READ IT CAREFULLY.

 

General Provisions

 

In order to enjoy all the benefits of the Site, users (hereafter “You”, “Your”, “User” or “Users”) must register and become a member. You may visit the Site without registering. All users of this Site agree that access to and use of this Site is subject to the following terms and conditions and other applicable laws.

 

You agree that by using this Site and registering for membership, you are at least 18 years of age if you are a resident of the United States or otherwise the age of majority in your jurisdiction of residence, or at least 13 years of age, visiting under the supervision and consent of a parent or guardian, and legally able to enter into a contract.

 

We grant you a limited license to access and use the Site for your personal, non-commercial use, and to copy, distribute, transmit and print the content of this Site only to the extent that such copying, distribution and transmission is automatically done through your browser software incidentally to using the Site for your personal use, provided that you do not remove or obscure any copyright notice, trademark notice, or other proprietary rights notices displayed on or in connection with the content. This limited license does not include any resale or commercial use of this Site or its contents; any collection and use of any product listings or descriptions; any derivative use of this Site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots or data gathering and extraction tools.

 

Except as permitted above, this Site or any portion of this Site may not be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited for any commercial purpose without express written consent of AOS. You may not use any meta tags or any other "hidden text" utilizing AOS's name or trademarks without the express written consent of AOS. Any unauthorized use terminates the permission or license granted by AOS.

 

We reserve the right to change any information, features and functions of the Site without prior notice. We may refuse service, cancel orders, terminate accounts and/or deny access to any or all parts of this Site if you engage in any conduct or activities that we determine, in our sole discretion, violate these Terms, our rights, or the rights of any third party. Use of the Site for any illegal or unauthorized purpose is strictly prohibited. We reserve the right to cancel orders due to suspected fraudulent activity in our sole discretion. The sale or linking of our products on or to any third party e-commerce site, marketplace or mobile application without our specific written consent is prohibited.

 

Guidelines for Using the Site

 

Your use of the Site is conditioned upon your strict adherence to the letter and spirit of the various applicable guidelines detailed on the AOS Services or these Terms. We may modify such guidelines in our sole discretion at any time. We reserve the right to terminate your account and access to the AOS Services if it is determined that you have violated any such applicable guidelines.

 

Registration and Membership

 

To register and become a member of our Site, complete the registration form by providing information such as your valid email address and creating a password to register your profile.

 

When you create an account, you agree to only provide true, accurate and correct information. You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, create multiple accounts except as otherwise authorized by us, or provide or use false information.

 

Each time you use your password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with these Terms and AOS has no obligation to investigate the authorization or source of any such access or use of the Site.

 

As a registered member of the AOS Services in the United States, your email address and password can be used to log into the AOS Services.

 

YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.

 

You are solely responsible for protecting the security and confidentiality of your password and identification. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security.

 

At the time of your first order on the AOS Services, we will request your shipping and payment information. Where permitted by applicable law, you agree that we may update your payment information with information your bank or credit card issuer may supply, or other information available to us. All such personal information is subject to our Privacy Policy, which is hereby incorporated into these Terms of Service.

 

 

As a registered member of the Site, we may send you emails promoting any special offer(s), including third party offers, as well as monthly newsletters, unless you opt-out at any time either by using unsubscribe buttons in emails you receive from us or by clicking here and entering your email address, indicating that you would like to unsubscribe from marketing emails.

 

Subscription Process on the AOS Services

 

You may order a Trial or select and purchase items offered by AOS, subject to the terms below.

 

TRIALS

 

You may select the products within a “Trial Kit” that may consist of trial sizes of Art of Sport Hair + Body Wash, Art of Sport Deodorant, Art of Sport Body Bar, and Art of Sport Sunscreen.

 

By electing to receive a Trial Kit, you will also be automatically enrolled in a subscription membership. 

 

IF YOU DO NOT CANCEL YOUR SUBSCRIPTION WITHIN ELEVEN DAYS OF PURCHASING THE TRIAL KIT, YOU WILL BE AUTOMATICALLY ENROLLED IN A SUBSCRIPTION MEMBERSHIP WHERE YOU WILL RECEIVE A BOX (AS DEFINED BELOW) CONSISTING OF PRODUCTS WHICH CORRESPONDS TO THE PRODUCTS YOU SELECTED WHEN PURCHASING THE TRIAL KIT.  WE WILL CHARGE YOUR BANK OR CREDIT CARD ACCORDINGLY FOR THE PRICE OF THE BOX AS WELL AS ANY APPLICABLE TAXES AND SHIPPING AND HANDLING FEES. Your Box will be automatically shipped at the frequency you choose (every 1, 2, 3, or 4 months) as described below, until you cancel your Box subscription or change your Box subscription.

 

IF, AFTER RECEIVING YOUR TRIAL, YOU DO NOT WISH TO SUBSCRIBE TO RECEIVE A  BOX, YOU MAY CANCEL YOUR BOX SUBSCRIPTION AT ANY TIME FOR 11 DAYS AFTER PURCHASING THE TRIAL KIT WITHOUT OBLIGATION BY LOGGING IN TO YOUR ART OF SPORT ACCOUNT AT ARTOFSPORT.COM/ACCOUNT AND VISITING “ACCOUNT DETAILS,” OR BY CALLING AOS SUPPORT AT 1-503-610-4055 (MONDAY - FRIDAY 10AM - 6PM EASTERN TIME).

 

SUBSCRIPTIONS

 

If you purchase a Subscription you will receive a shipment every 1, 2, 3, or 4 months, based on your selection containing a supply of body care products that you choose.

 

You may log in to your account and customize your Subscription at any time, including preferred scents and item contents. You can also advance or delay the next shipment as you wish. If you do not update your Subscription selections for a particular month, we will send you the same shipment we sent the previous month, subject to availability.

 

SUBSCRIPTION RENEWAL AND CANCELLATION TERMS

 

IF YOU ARE PLACING AN ORDER AS PART OF OUR SUBSCRIPTION, YOUR MEMBERSHIP IN THE PROGRAM WILL REMAIN IN EFFECT UNTIL IT IS CANCELLED BY YOU OR BY AOS.  WE RESERVE THE RIGHT TO CANCEL YOUR SUBSCRIPTION AT ANY TIME.

 

We will charge your bank or credit card when we ship your first order. After your initial order, you will be charged the amount agreed to in your original order, plus applicable taxes and shipping & handling each time a Subscription box ships, until you choose to cancel your Subscription or change the shipping frequency of your Subscription.

 

You may cancel your Subscription at any time. To cancel your Subscription, you can do so online at any time by logging in to your Art of Sport account at artofsport.com/account and visiting “Account Details,” or by calling AOS Support at 1-503-610-4055 (Monday – Friday, 10AM - 6PM Eastern Time). Please note: Subscriptions cannot be cancelled via email, Facebook, or any other forms of social media.

 

Billing and Payments on the AOS Services

We accept the following bank or credit cards: Visa, MasterCard, American Express, JCB, Diner’s Club, and Discover. For your convenience, we will save your bank or credit card information.

 

You may be charged local tax, if applicable. If your payment method is declined, we will attempt to process your charge until the transaction is approved. We and our third party payment service providers may request, and we may receive, updated credit card information from your credit card issuer, such as updated card numbers and expiration date information when your credit card has expired. If such updated information is provided to us and our third-party payment service providers, we will update your account information accordingly, and will use such updated information to process payments for your future purchases and subscriptions. Your credit card issuer may give you the right to opt out of providing vendors and third-party payment service providers with your updated credit card information. If you wish to opt out of your credit card’s updating service, you should contact your credit card issuer.

 

We are not responsible for any fees or charges that your bank or credit card issuer may apply. If your bank or credit card issuer reverses a charge to your credit card, we may bill your account directly and seek payment by another method including a mailed statement.

 

The risk of loss and title for items purchased by you passes to you upon our delivery of the items to the carrier. Replacement of products and credits to your account for shipped merchandise claimed as not received are subject to our investigation, which may include postal service notification. We will replace products and credit your account at our discretion.

 

If you would like to exchange or return a product, please contact AOS Support at help@artofsport.com or 1-503-610-4055 (Monday – Friday, 10AM - 6PM Eastern Standard Time) within 365 days of your purchase.

 

 

 

Restrictions on Use of the Site

 

Your use of the Site is conditioned upon you not doing any of the following:

 

Posting, uploading, publishing, submitting or transmitting any information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances);

Accessing, tampering with, or using non-public areas of the AOS Services, computer systems, or the technical delivery systems of the AOS Services providers;

Attempting to decipher, decompile, disassemble or reverse engineer, avoid, bypass, remove, deactivate, impair, descramble probe, scan, test, breach or otherwise circumvent any technological or security measure implemented by the AOS Services, AOS Services providers or any other third party (including another user) to protect or provide the AOS Services;

Attempting to access or search the AOS Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than tools that access or search the AOS Services through software and/or search agents provided by the AOS Services or other generally available third party web browsers;

Forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way using the Services to send altered or deceptive information;

Interfering with, or attempting to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing, junk mailing, unauthorized advertising or any form of solicitation via the AOS Services;

Collecting or storing any personally identifiable information from the AOS Services from other users of the AOS Services without their express prior permission;

Impersonating or misrepresenting your affiliation with any person or entity;

Contacting, stalking or harassing anyone through the AOS Services who has asked not to be contacted; and

Posting false or irrelevant content, or repeatedly posting the same or similar content.

 

We will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the AOS Services or to review or edit any content you post or share to the AOS Services, but we have the right to do so for the purpose of operating the Site, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.

 

 

 

Warranty Disclaimer

 

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED, THE SITE AND THE PRODUCTS OFFERED ON THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, UNLESS SPECIFICALLY SET FORTH OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AOS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. AOS DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. AOS DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS ON THE SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.

 

Limitation of Liability

 

THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

 

AOS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE OR MATERIALS ON THE SITE, EVEN IF AOS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Typographical Errors

 

In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we have the right to refuse or cancel any orders placed for product listed at the incorrect price, whether or not the order has been confirmed and your bank or credit card charged. If your bank or credit card has already been charged for the purchase and your order is canceled, we will immediately issue a credit to your bank or credit card account in the amount of the charge.

 

Copyrights and Trademarks

 

The technology underlying the Site and the entire contents of the Site including, but not limited to, text, graphics, images, photographs, audio and video clips, digital downloads, data compilation or code (collectively, “Works”) is copyrighted under the United States, Canada and other copyright laws, and is the property of AOS and protected by copyright and other intellectual property or proprietary rights. The Works as defined above also includes works that are licensed to AOS.

 

All trademarks, service marks, and trade names (collectively, “Trademarks”) appearing on the Site are trademarks or registered trademarks of AOS or their respective owners. The Works and Trademarks appearing on our Site may not be used in any manner for any purpose without our express written consent.

 

DMCA Notice

 

AOS complies with the Digital Millennium Copyright Act (“DMCA”).  Any notices given pursuant to the DMCA shall be given to the AOS designated agent via email at hello@artofsport.com or via registered US mail sent return receipt to: DMCA Compliance Agent, The AOS Group, Inc.,2042 Armacost Ave., Los Angeles, CA 90025.

 

Indemnification

 

You agree to indemnify, defend and hold harmless AOS, its officers, directors, employees, agents, licensors and suppliers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms, or any activity related to use of the Site (including negligent or wrongful conduct) by you or any other person accessing the Site using your identification or password.

 

Privacy

 

Registration data and other information about you are subject to our Privacy Policy, which is incorporated herein by this reference. You understand that the technical processing and transmission of this Site may involve (a) transmission of your personal data over various networks; and (b) changes to your personal information in order to conform and adapt to technical requirements of connecting networks or devices. For more information, see our privacy policy.

 

Third-Party Links and Sites

 

This Site may link to other websites operated by third parties. We have no control over these linked sites, each of which have separate privacy and data collection practices independent of AOS. We are not responsible for and do not endorse or accept any responsibility for the availability, contents, products, services or use of any third party site, any website accessed from a third party site or any changes or updates to such sites. These linked sites are only for your convenience and therefore you access them at your own risk. You acknowledge that you bear all risks associated with access to and use of content provided on a third party site and agree that we are not responsible for any loss or damage you may incur from dealing with such a third party site. You should contact the site administrator for the applicable third party site if you have any concerns regarding such links or the content located on any such third party site.

 

Submissions

 

UNSOLICITED SUBMISSIONS

 

We welcome your feedback and comments regarding our products and services. However, we cannot accept or consider creative ideas, suggestions or materials, and we ask that you not submit any creative ideas, suggestions or materials of any kind to us. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by AOS might seem to others to be similar to their own creative work. Accordingly, we ask that you not send us any original creative ideas, suggestions or materials of any kind, including show designs, photographs, drawings or original artwork. If you send us any creative ideas, suggestions, or materials of any kind despite our request not to do so (an "Unsolicited Submission"), you acknowledge and agree that we may treat the unsolicited submission to be non-confidential and non-proprietary in each instance and in all respects.  All unsolicited submissions made by you shall be the sole property of AOS and will not be acknowledged or returned.

 

REQUESTED SUBMISSIONS

 

From time to time, we may solicit creative ideas, suggestions or materials from users of our Site. If you at any time send, provide us with or post creative ideas, suggestions, or any other materials in response to our request (each, a "Requested Submission"), you acknowledge and agree that we may treat the requested submission as non-confidential and non-proprietary in each instance and in all respects.

 

SHARED SUBMISSIONS

 

Submissions may also be provided in the form of opinions and views posted to chat rooms, blogs, bulletin boards, or discussion forums by Users persons who use (”Users”) the Site (”Shared Submissions”, together with Unsolicited Submissions and Requested Submissions, collectively “submissions”).  You are responsible for all Submissions you provide to the Site, and you represent that you have all necessary permission to submit, post and otherwise make available such Submissions. AOS makes no claims to ownership of shared submissions and you shall continue to retain all ownership rights in your Shared Submissions and the right to use your Shared Submissions as you see fit.

 

OTHER RIGHTS AND GUIDELINES REGARDING YOUR SUBMISSIONS

 

You agree that we have no obligation of confidence to you with respect to any Submission and we shall not be liable to you in any way for any use or disclosure of any Submission. We may use any Submission without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights or right to credit for the material or ideas.

 

You hereby irrevocably grant to us the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, distribute and otherwise use the submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit. By submitting a Submission to us, you represent that such Submission is original to you and does not conflict with, violate or infringe upon the rights of any third parties including, without limitation, any intellectual property rights and rights of publicity and/or privacy.

 

You hereby acknowledge and agree that your relationship with us is not a confidential, fiduciary or other special relationship, and that your decision to make a Submission does not place us in a position that is any different from the position held by members of the general public with regard to your Submission. You understand and acknowledge that we have broad access to ideas, products designs and other materials related to our business, and that new ideas, products, designs and other materials are constantly submitted to us or being developed by our own employees. Many Submissions that we receive or ideas, products, designs and materials that are independently developed by us may be competitive with, similar or identical to your Submission. You acknowledge and agree that you will not be entitled to any compensation as a result of our use of any such similar or identical submission or independently developed ideas, products, designs or materials.

 

You acknowledge that, with respect to any claim you may have relating to or arising out of our actual or alleged exploitation or use of any Submission you make, the damage, if any, caused thereby will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the production, distribution, exhibition or other exploitation of any production based on or allegedly based on your submission, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.

 

While AOS strives to keep our content accurate, complete, and up-to-date, we cannot and do not guarantee or endorse, and are not responsible for, the accuracy, completeness, reliability or timeliness of any content, whether provided by AOS or by Users.  Any opinions, advice, statements or other information expressed or made available by Users or third parties, including but not limited to bloggers, are those of the respective User or other third party and not of AOS. AOS does not have any obligation to prescreen, edit, or remove any Submissions provided by Users that are posted on or available through the Site.

 

Notice Regarding Medical Advice

 

THIS SITE DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. NOTHING STATED OR POSTED ON THIS SITE OR AVAILABLE THROUGH ANY SERVICES ARE INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE. THE SITE MATERIALS, SUCH AS TEXT, GRAPHICS, IMAGES, AND INFORMATION OBTAINED FROM THIS SITE ARE FOR INFORMATIONAL PURPOSES ONLY. THE SITE IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT OR OTHER PROFESSIONAL SERVICES OR ADVICE. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF INFORMATION YOU HAVE OBTAINED THROUGH THIS SITE. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.

 

 

Arbitration

 

AOS is committed to resolving all disputes in a fair, effective and cost-efficient manner. We seek to resolve any customer concerns through our AOS Support services at help@artofsport.com. However, if you are dissatisfied with our customer service's resolution of your matter, these Terms of Service provide that disputes may be resolved in binding arbitration or small claims court. Our arbitration agreement for U.S. disputes, which is set forth below, has been designed to make arbitration as convenient and inexpensive for our customers as possible. We will abide by the terms of our current arbitration provision in all instances.

 

RESOLUTION OF DISPUTES – MANDATORY ARBITRATION AND CLASS ACTION WAIVER: United States Only

 

(a) We and you agree to arbitrate all disputes and claims between us before a single arbitrator. The types of disputes and claims we agree to arbitrate are intended to be broadly interpreted and include:

 

Claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory.

Claims that arose before these or any prior versions of our Terms of Service (including, but not limited to, claims relating to advertising);

Claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and

Claims that may arise after termination of these Terms.

 

 

For the purposes of this Arbitration Agreement, references to "The AOS Group", "we" and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under these Terms of Service or any prior agreements between us.

 

Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude your bringing issues to the attention of federal, state or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf.

 

You agree that, by accessing and using this Site, you and we are each waiving the right to a trial by jury or to participate in a class action. These Terms of Service evidence a transaction or website use in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms of Service.

 

(b) A party who intends to seek arbitration must first send, by U.S. certified mail, a written Notice of Dispute ("Notice") to the other party. A Notice to The AOS Group should be addressed to: Notice of Dispute, The AOS Group, 2042 Armacost Ave., Los Angeles, CA 90025 ("Notice Address"). The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought ("Demand"). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received by us, you or The AOS Group may commence an arbitration proceeding.

 

During the arbitration, the amount of any settlement offer made by The AOS Group or you prior to selection of an arbitrator shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or The AOS Group is entitled.

 

You may download or copy a form Notice from The AOS Group General Notice Form (PDF). You may download or copy a form to initiate arbitration from the AAA website under the "Forms" tab.

 

(c) After The AOS Group receives a Notice at the Notice Address that you have commenced arbitration, we will promptly reimburse you for your payment of the filing fee, unless your claim is for more than $75,000. (Currently, the filing fee is $125 for claims under $10,000, but this is subject to change by the arbitration provider. If you are unable to pay this fee, The AOS Group will pay it directly after receiving a written request to do so at the Notice Address.) The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, the "AAA Rules") of the American Arbitration Association (the "AAA"), as modified by these Terms of Service, and will be administered by the AAA. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall be bound by these Terms of Service. Unless you and we agree otherwise, any arbitration hearings will take place in the county (or parish) of your contact address. If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, by a telephonic hearing or by an in-person hearing as established by the AAA Rules. If you choose to proceed either in person or by telephone, we may choose to respond only by telephone or submission. If your claim exceeds $10,000, the AAA Rules will determine whether you have a right to a hearing.

 

Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings of fact and conclusions of law on which the award is based. You and we agree that any awards or findings of fact or conclusions of law made in an arbitration of their dispute or claim are made only for the purposes of that arbitration and may not be used by any other person or entity in any later arbitration of any dispute or claim involving The AOS Group. You and we agree that in any arbitration of a dispute or claim, neither of us will rely for preclusive effect on any award or finding of fact or conclusion of law made in any other arbitration of any dispute or claim to which we were a party.

 

Except as otherwise provided for herein, we will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. In addition, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules. An award may be entered against a party who fails to appear at a duly noticed hearing.

 

(d) If, after finding in your favor in any respect on the merits of your claim, the arbitrator issues you an award that is greater than the value of The AOS Group's last written settlement offer made before an arbitrator was selected, then we will:

 

pay you either the amount of the award or $2,000 ("the alternative payment"), whichever is greater; and pay your attorney, if any, the amount of reasonable attorneys' fees, and reimburse any expenses (including reasonable expert witness fees and costs), that your attorney reasonably accrues for investigating, preparing and pursuing your claim in arbitration (the "attorneys' fees").

 

 

If we did not make a written offer to settle the dispute before an arbitrator was selected, you and your attorney will be entitled to receive the alternative payment and reasonable attorneys' fees, respectively, if the arbitrator awards you any relief on the merits. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees, expenses and the alternative payment and the attorneys' fees at any time during the proceeding and upon request from either party made within fourteen days of the arbitrator's ruling on the merits.

 

(e) The right to attorneys' fees and expenses discussed in paragraph (d) supplements any right to attorneys' fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys' fees or costs. Although we may have a right to recover attorneys' fees and expenses in certain jurisdictions if we prevail in an arbitration, we will not seek such an award.

 

(f) The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL. The arbitrator shall not have the power to commit errors of law or legal reasoning, and the parties agree that any injunctive award may be vacated or corrected on appeal by either party to a court of competent jurisdiction for any such error. Each party will bear its own costs and fees on any such appeal. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding. If this specific proviso is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.

 

(g) All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential, other than as part of an appeal to a court of competent jurisdiction.

 

Class Action Waiver

 

Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.

 

Small Claims Option

 

You may also litigate any Dispute in Small Claims Court in the County of Los Angeles, California, if the Dispute meets all requirements to be heard in the small claims court. You can learn more about the Small Claims Court in the County of Los Angeles by clicking here: http://www.lacourt.org/division/smallclaims/smallclaims.aspx.  However, if you initiate a Small Claims case, you are responsible for all your court costs.

 

Choice of Law and Forum Selection

 

You agree that the laws of the State of California govern this agreement and any claim or Dispute or issues arising from it, without regard to California’s conflict of laws rules. Unless you and we agree otherwise, in the event that the Agreement to arbitrate above is found not to apply to you or to a particular claim or Dispute as a result of a decision by the arbitrator or a court order, you agree that any disputes or claims that you may have against us reside in and will be resolved by a state or federal court located in the County of Los Angeles in the State of California and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.

 

Governing Law & Exclusive Venue

 

Use of the Site and any claim relating to AOS shall be governed by the laws of the State of California and litigated in the State of California.  Any disputes, actions, claims or causes of action arising out of or in connection with these Terms or the Site shall be subject to the exclusive jurisdiction of the state and federal courts located in California. The choice of law of and exclusive venue in California apply to you regardless of where you are accessing the Website from even if you are accessing the Site from outside of the United States of America.

 

Arbitration Agreement: Canada

 

In Canada, if a dispute is not resolved through our AOS Support Services, the parties involved in the dispute may agree to resolve the dispute using final and binding arbitration. If the parties elect to use arbitration, claims shall be referred to the ADR Institute of Canada. For a copy of the procedure to file a claim, or for other information about this organization, contact them as follows: www.adrcanada.ca.

 

 

 

Termination

 

These Terms are applicable to you upon your accessing this Site. The provisions relating to Copyrights, Trademark, Warranty, Disclaimer, Limitation of Liability, Privacy, Submissions, Indemnification, Arbitration and Miscellaneous, shall survive any termination of these Terms of Service.

  

These Terms (together with the Privacy Policy) represent the parties' entire understanding relating to the use of the Site and supersedes any prior or contemporaneous, conflicting or additional, communications. AOS reserves the right to change these Terms or policies relating to the Site at any time and from time to time, and such changes will be effective upon being posted herein.  You should visit this page from time to time to review the then current Terms because they are binding on you.  Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on particular pages of the Site, which may be posted from time to time.  Your continued use of the Site after any such changes and/or postings shall constitute your consent to such changes. If any provision of these Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

You may not assign these Terms without the prior written approval of AOS.  Any purported assignment in violation of this section shall be void.   AOS reserves the right to use third party providers in the provision of the Service and/or Materials associated therewith.  In the event of any litigation of any controversy or dispute arising out of or in connection with these Terms, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any and all rights not expressly granted herein are reserved by AOS.

 

UNITED STATES ONLY

Unless otherwise specified, the Site is solely for use within the United States.  We make no representation that the Service is appropriate or available for use in other locations.  If you access the Site from locations other than the United States, you do so at your own risk.  Whether inside or outside the United States, you are solely responsible for compliance with any applicable local laws.

 

If you have any questions regarding these terms or wish to contact us for any matter:

Email:  hello@artofsport.com