Acceptable Use of the Site and Services
You are responsible for your use of the Website, and for any use of the Website made using your account. Our goal is to create a positive, useful, and safe user experience. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Website, you may not:
- violate any law or regulation;
- violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
- post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
- send unsolicited or unauthorized advertising or commercial communications, such as spam;
- engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Website;
- transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
- stalk, harass, or harm another individual;
- impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web pages contained in the Website;
- attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Website;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Website; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
GymSick USA is a registered trademark of World of Jeans & Tops. GymSick USA and other marks indicated on our Website are trademarks or registered trademarks of World of Jeans & Tops. All rights in such names are reserved.
All rights in the product names, company names, trade names, graphics, logos, page headers, button icons, scripts, product packaging, trade dress and designs of all GymSick USA or third-party products or services, whether or not appearing in large print or with the trademark symbol, belong exclusively to GymSick USA or their respective owners and are protected from reproduction, imitation, dilution, or confusing or misleading uses under national and international trademark and copyright laws. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited, and nothing stated or implied on the Website confers on you any license or right under any trademark of GymSick USA or any third party.
Except for your User Content (defined below), all copyright rights in the text, images, photographs, graphics, user interface, music and other content provided on the Website, and the selection, coordination, and arrangement of such content, are owned by GymSick USA or its third-party licensors to the full extent provided under the United States Copyright Act and all international copyright laws. Under applicable copyright laws, you are prohibited from copying, reproducing, modifying, distributing, displaying, performing, or transmitting any of the contents of the Website for any purposes. Nothing stated or implied on the Website confers on you any license or right under any copyright of GymSick USA or any third party.
Notice of Copyright or Trademark Infringement
GymSick USA respects and honors the intellectual property of others. If you believe that your work has been copied and is accessible on the Website in a way that constitutes infringement, please provide GymSick USA with the following information: (1) identification of the copyrighted work claimed to have been infringed; (2) identification of the allegedly infringing material on the Website that is requested to be removed; (3) your name, address, and daytime telephone number, and an email address, so that GymSick USA may contact you if necessary; (4) a statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law; (5) a statement that the information in the notification is accurate and, under penalty of perjury, that the signatory is authorized to act on behalf of the owner of an exclusive copyright right that is allegedly infringed; and (6) an electronic or physical signature of the copyright owner or someone authorized on the owner’s behalf to assert infringement of copyright and to submit the statement.
Pursuant to our rights under the Digital Millennium Copyright Act (“DMCA”), we have designated a copyright agent to receive copyright infringement notices. GymSick USA agent for notice of claims of copyright or trademark infringement on the Website is:
Vice President and General Counsel, GymSick USA, 200 Main St. #115 Huntington Beach, Ca 92648
We are not responsible for the accuracy of any user content contained in any Forum or otherwise on our Website.
User Profile Information
When you set up a user profile, GymSick USA will require you to provide a password, username, or other information such as your name and email address. You agree and represent that all of the information you provided is accurate and up-to-date. You are solely responsible for keeping your login information current and confidential. You may not transfer, sell, or assign or sub-license your user profile to any third party without our prior written approval. You are solely responsible for all your individual usage or activity on the Website including, but not limited to, use of the Website by any person who uses your user profile, with or without authorization. You agree to notify GymSick USA of any breach of security on your account. GymSick USA will not be liable for losses incurred as a result of an unauthorized use of a password, or user profile.
You are responsible for the protection of the password that you use to access the Website and for any activities or actions under your password. We encourage the use of “strong” passwords with your account.
The Website allows you to upload, submit, store, send, or receive content and data (“User Content”) such as through a Forum or a contest or sweepstakes. You retain ownership of any intellectual property rights that you hold in that User Content. In other words, you own your User Content.
When you upload, submit, store, send, or receive User Content to or through the Website, you give us permission to reproduce and use your User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content. This license is for the purpose of operating, promoting, and improving the Website, to promote GymSick USA, as well as for other purposes that GymSick USA may determine in its sole discretion. Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Website.
You promise that:
- you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
- your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
By submitting User Content, in addition to any other grants which may be granted in any other agreement entered into between you and GymSick USA and if you provide such information or content to GymSick USA, you irrevocably grant GymSick USA and its successors, assigns, and licensees, the right to use your name, likeness, image, and biographical information in any and all media for any purpose, including, without limitation, advertising and publicity purposes, as well as in connection with the Website and hereby release GymSick USA from any liability with respect thereto.
We may refuse to accept or transmit User Content for any reason. We may remove User Content from the Website for any reason.
By using the Website, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years of age or older; and (d) your use of the Website does not violate any applicable law or regulation. Your profile may be deleted and your account may be terminated without warning if we believe that you are under 13 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
License and Website Access
GymSick USA grants you a limited, revocable and nonexclusive license to access and make personal use of the Website but not to download (other than page caching) or modify it, or any portion of it, except with express written consent of GymSick USA. This license does not include any resale or commercial use of the Website or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of the Website or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, spiders or similar data gathering and extraction tools.
Neither the Website nor any portion of the Website may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of GymSick USA. You may not frame or use framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of GymSick USA and its affiliates without express written consent of GymSick USA. You may not use meta tags or any other hidden text using GymSick USA name or trademarks without the express written consent of GymSick USA. Any unauthorized use will immediately terminate the permission or license granted by GymSick USA.
You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of GymSick USA so long as the link does not portray GymSick USA or its products or services in a false, misleading, derogatory, or otherwise offensive manner as determined by GymSick USA in its sole discretion. You may not use any GymSick USA logo or other proprietary graphic or trademark as part of the link without express written permission of GymSick USA. You may not make any other part of the Website, other than the home page of the Website, available as part of another service by “deep linking,” or otherwise, without prior written permission from GymSick USA.
Third Party and Co-Branded Websites
The Website may contain hyperlinks (“Links”) to websites operated by persons or entities other than GymSick USA (“Third-party Websites”) or to co-branded websites operated by a third party, including affiliates (“Co-branded Websites”). We provide these Links for your reference and convenience only. A Link from GymSick USA to a Third-party Website does not imply or mean that we endorse the content on that Third-party or Co-branded Website or the operator or operations of that Website. You are solely responsible for determining the extent to which you use any content at any Third party or Co-branded Websites to which you might link from our Website.
GymSick USA is not responsible or liable for any loss or damage incurred as a result of any dealings with any Third-party Website or Co-branded Website, any merchant or operator of a Third-party Website or Co-branded Website, or any other person with whom you may engage in any transaction.
By using the Website, you agree not to violate or attempt to violate the security of the Website, including, by way of illustration but not limitation, actions like accessing data not intended for you or logging into a server or account that you are not authorized to access; attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; attempting to interfere with service to any user, host, or network, including, without limitation, by way of submitting a virus to or overloading, “flooding,” “spamming,” “mailbombing,” or “crashing” the Website; sending unsolicited email, including promotions and/or advertising of products or services; and forging any TCP/IP packet header or any part of the header information in any email or posting.
Risk of Loss
All products purchased from the Website are transported and delivered to you by an independent carrier not affiliated with, or controlled by, GymSick USA. Title to products purchased on the Website, as well as the risk of loss for such products, pass to you when GymSick USA delivers these items to the carrier. Any material downloaded or otherwise obtained through the use of the Website is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or other device or loss of data that results from the download of any such material.
GymSick USA attempts to be accurate in describing its products. We do not warrant that product descriptions or other content of the Website are complete, reliable, current, or error-free. In some cases, merchandise displayed for sale at the Website may not be available in retail stores. Unless otherwise stated, the prices displayed at the Website are quoted in U.S. Dollars.
We made every effort to display as accurately as possible the colors of our products that appear at the Website. As the actual colors you see depend on your computer monitor, however, we cannot guarantee that your monitor’s display of any color will be accurate.
DISPUTE RESOLUTION & ARBITRATION AGREEMENT (“Arbitration Agreement”)
Scope of the Arbitration Agreement. Mindful of the high cost of legal disputes, not only in dollars but in time and energy, both you and GymSick USA, Inc. (“GymSick USA”) agree that any legal dispute between you and GymSick USA concerning or arising in any way out of a purchase from fitwithcookie.com, your enrollment and participation in GymSick USA Rewards, any communications between you and GymSick USA, or your participation in any other program or service provided by GymSick USA shall be resolved through binding individual arbitration unless you opt out of this Arbitration Agreement using the process explained below. You understand and agree that you are waiving your right to sue or go to court to assert or defend your rights. However, either you or GymSick USA may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. The term “dispute” means any dispute, action, claim, or other controversy between you and GymSick USA, whether in contract, warranty, tort, statute, regulation, ordinance, or any other legal or equitable basis. “Dispute” will be given the broadest possible meaning allowable under law.
Informal Dispute Resolution. Either party asserting a dispute shall first try in good faith to resolve it by providing written notice as specified below to the other party describing the facts and circumstances (including any relevant documentation) and allowing the receiving party 30 days in which to respond. Notice shall be made by first class or registered mail (1) to GymSick USA at World of Jeans & Tops d/b/a GymSick USA, Attention: Legal Department, 10 Whatney, Irvine, CA 92618 or (2) to you at the postal address on file with GymSick USA. Both you and GymSick USA agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
Right to Opt Out of this Arbitration Agreement. You may opt out of this Arbitration Agreement within the first 30 days after the earliest of the first time you (a) make a purchase from GymSick USA.com; or (b) sign up for any program or service provided by GymSick USA, including GymSick USA Rewards. You may also opt out of this Arbitration Agreement within 30 days after we notify you regarding a material change to this Arbitration Agreement. You may opt out by sending an email to GymSick USA at firstname.lastname@example.org or by sending a letter to World of Jeans & Tops d/b/a GymSick USA, Attention: Legal Department, 10 Whatney Irvine, CA 92618. You should include your printed name, mailing address, and the words “Reject Arbitration.”
How Arbitration Works. Either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the dispute, the parties shall agree to, or the court shall select, another arbitration provider. Unless you and GymSick USA agree otherwise, any arbitration hearing shall take place in the county of your residence (as determined by your billing address on file with GymSick USA). If you live outside the United States, any arbitration will take place in Orange County, CA. GymSick USA will pay all filing, administrative, arbitrator and hearing costs and waives any rights it may have to recover an award of attorneys’ fees and expenses against you.
Waiver of Right to Bring Class Action and Representative Claims. All arbitrations shall proceed on an individual basis. The arbitrator is empowered to resolve the dispute with the same remedies available in court, however, any relief must be individualized to you and shall not affect any other customer. You and GymSick USA also agree that each may bring claims against the other in arbitration only in your or their respective individual capacities and in so doing you and GymSick USA hereby waive the right to a trial by jury, to assert or participate in any class action lawsuit or class action arbitration, any private attorney general lawsuit or private attorney general arbitration, and any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
Governing Law and Other Terms. This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act and other applicable federal law. To the extent state law applies to any aspect of this Arbitration Agreement, or to any disputes and claims that are covered by the Arbitration Agreement, the law of the State of California will govern. GymSick USA will provide notice of any material changes to this Arbitration Agreement. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of this Agreement, including whether any dispute falls within its scope. However, the parties agree that any issue concerning the validity of the class action/representative waiver above must be decided by a court, and an arbitrator does not have authority to consider the validity of the waiver.
Disclaimer of Warranties and Limitations on Liability
YOU USE THE WEBSITE AT YOUR OWN RISK. THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GymSick USA AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
IN PARTICULAR, GymSick USA AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE WEBSITE, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE WEBSITE. GymSick USA AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE WEBSITE; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE WEBSITE BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE WEBSITE.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GymSick USA OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE WEBSITE, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Certain states or jurisdictions do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions or limitations may not apply and you may have additional rights. To the extent we may not, as a matter of applicable law, disclaim any implied warranty or limit our liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such law.
GymSick USA may discontinue the Website at any time and for any reason, without notice. We may change the contents, operation, or any and all other features of the Website at any time for any reason, without notice. We may discontinue or restrict your use of the Website at any time for any reason, without notice.