IMPORTANT-READ THESE TERMS AND CONDITIONS (THESE “TERMS AND CONDITIONS”) CAREFULLY BEFORE CONTINUING. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THESE TERMS AND CONDITIONS BY SUBMITTING YOUR INFORMATION VIA THE “GETTING STARTED” PAGE OR REQUESTING THAT WE SET-UP A CROSSFIT® AFFILIATE STORE FOR YOU OR ON YOUR COMPANY’S BEHALF, YOU (A) AGREE TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS, (B) REPRESENT AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER, AND (C) IF YOU ARE ENTERING INTO THESE TERMS AND CONDITIONS ON BEHALF OF A CORPORATION, LIMITED LIABILITY COMPANY OR OTHER LEGAL ENTITY, THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS AND THAT SUCH ENTITY IS AN AUTHORIZED CROSSFIT AFFILIATE (IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE TERMS AND CONDITIONS SHALL REFER TO SUCH ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE ANY AFFILIATE STORE WE MAY SET-UP ON YOUR BEHALF.
These Terms and Conditions govern the set-up and operation of an online retail apparel store by us, The Kila Group, LLC, an Indiana limited liability company (“FullyAmped”, “we” or “us”), on behalf of you, an authorized CrossFit® Affiliate (“Affiliate”, “you” or “your”). You provide your name, logo and design (or you can use one of our design templates), and we create your online retail website, manage your online retail presence and provide and fulfill high quality apparel products made to order, as further described in these Terms and Conditions.
- “Affiliate Content” has the meaning set forth in Section 3(a).
- “Confidential Information” means all information provided or made available by FullyAmped to Affiliate, in any form or medium (whether orally, electronically, in writing or otherwise) that FullyAmped considers confidential or proprietary, and due to the nature or circumstances would reasonably be understood to be confidential or proprietary, whether or not it is designated as confidential. Confidential Information will include information about FullyAmped’s pricing, Affiliate Percentages, business plans, trade secrets, business methods, and technical data about the Online Store or FullyAmped’s website. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to FullyAmped, (ii) was known to Affiliate before receipt from FullyAmped, or (iii) was received on a non-confidential basis from a third party not under any obligation to maintain confidentiality.
- “FullyAmped Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, tags, templates, designs, copyrighted or copyrightable works, trademarks, and all other forms of intellectual property that FullyAmped incorporates into the Online Store and any related services provided thereto, which have not otherwise been uploaded or provided by Affiliate.
- “FullyAmped Parties” means FullyAmped, any of its affiliates, and any of its or their officers, directors, employees, service providers, agents, licensors and affiliates, and each of their respective licensees, successors and assigns.
- “Intellectual Property Rights” means all copyright, trademark, patent, publicity, moral, database, trade secret and/or other intellectual property rights.
- “Store Policies” means the FullyAmped Store Policies, as amended from time to time, located at [https://www.fullyamped.com/pages/store-policies].
3. Online Store; Intellectual Property.
Set-Up and License Grant. Upon your acceptance of these Terms and Conditions, FullyAmped will set-up for you an online retail store for purposes of selling your branded apparel (the “Online Store”). We will need access to your name, logo, trademark, mark and any artwork or design you wish to use, including all associated Intellectual Property Rights (“Affiliate Content”), in a format acceptable to us, in our sole discretion, for creating apparel designs in consultation with you. Your Affiliate Content belongs to you, and you will retain all ownership and/or rights to the Affiliate Content except as expressly provided by these Terms and Conditions. You warrant that you have the right to use, and to permit us to use, all Affiliate Content as described herein. You hereby grant and license to us the non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable right to use, reproduce, modify, perform, display, distribute and otherwise disclose any Affiliate Content for any purpose consistent with these Terms and Conditions. Affiliate represents and warrants that, with respect to all Affiliate Content that Affiliate provides to us, Affiliate owns or otherwise controls all rights necessary to fulfill the grants, licenses, and obligations identified in these Terms and Conditions, including without limitation, our right to create, provide and promote the Online Store and items for sale via the Online Store, market, promote, and operate FullyAmped’s business, and use, reproduce, modify, perform, display, distribute and otherwise disclose the Affiliate Content on any social media platform. By providing us with your information and any Affiliate Content, you represent and warrant that you have the authority to act on behalf of Affiliate and that use of the Affiliate Content (including derivatives thereof) by any FullyAmped Party does not and will not infringe any Intellectual Property Rights of any third party. You shall not provide any Affiliate Content that (1) violates any non-party’s Intellectual Property Rights, (2) references another CrossFit affiliate or FullyAmped without their or our prior written permission, or (3) is misleading, vulgar or offensive. We may reject or delete any Affiliate Content in our sole discretion. We have no duty to review any Affiliate Content and cannot ensure prompt removal of any objectionable content. You are responsible for all Affiliate Content, including all Affiliate Content incorporated into any form or use by FullyAmped, and FullyAmped takes no responsibility and assumes no liability for any Affiliate Content.
If we believe that any Affiliate Content violates these Terms and Conditions, infringes any Intellectual Property Right or other right of any person or entity, threatens the personal safety of others, or could create liability for FullyAmped, we shall have the right to (i) remove or refuse to post any such Affiliate Content, (ii) take any other action with respect to any Affiliate Content that we deem necessary or appropriate, (iii) disclose Affiliate’s identity or other information to any third party who claims that Affiliate Content violate their rights, including their Intellectual Property Rights or their right to privacy, (iv) take appropriate legal action, including referral to law enforcement, and/or (v) terminate these Terms and Conditions and take down Affiliate’s Online Store.
Affiliate waives and holds harmless the FullyAmped Parties from any claims resulting from any action relating to Affiliate Content or taken by any FullyAmped Party during, or taken as a consequence of, investigations by any FullyAmped Party or law enforcement authorities.
Use of Online Store. You will use the Online Store in accordance with these Terms and Conditions and the Other Terms. We may refuse service to you for any reason in our sole discretion. We may remove, discontinue or restrict access to all or any portion of the Online Store, at any time, without notice, in our sole discretion, including if we reasonably believe these Terms and Conditions or the Other Terms have been or are being violated. We shall not be liable for any damages, losses, or other harm to Affiliate resulting from our decision to discontinue or restrict access for any reason. Providing the Online Store does not mean FullyAmped endorses or supports your business, or warrants the products available via the Online Store. We do not guarantee delivery of any items purchased from the Online Store. We may change or update the Online Store and any of the Other Terms from time to time, but are under no obligation to ensure that any content is complete or up to date at any given time and will not be held liable for the inaccuracy of any such information. If the Online Store contains links to other sites and resources provided by third parties (including banner advertisements and sponsored links), these links are provided for convenience, support of the Online Store and/or other marketing purposes. We have no control over the contents of those sites or resources and accept no responsibility for them, their accuracy, or any loss or damage that may arise from Affiliate’s or any third party’s use of them. You may not link to the Online Store in a way that damages FullyAmped’s reputation or suggests any form of approval or endorsement by FullyAmped of you, your business or any other content associated with such link. We may link to your website or social media page to market and promote the Online Store.
FullyAmped’s Intellectual Property Rights. The FullyAmped Content, including the Online Store, and all related materials, features, and functionality protected by the intellectual property laws of any jurisdiction, solely belong to and are the exclusive property of FullyAmped or its licensors (if any), and FullyAmped retains complete and exclusive ownership of all Intellectual Property Rights related to such material. Affiliate shall not copy, rent, lease, sell, distribute, publicly display, publicly perform, modify or create derivative works based on the FullyAmped Content or the Online Store in whole or in part, by any means, except as expressly authorized in writing by FullyAmped. If FullyAmped makes any FullyAmped Content available to Affiliate, Affiliate may only use such FullyAmped Content while the Online Store is active and these Terms and Conditions remain in effect. FullyAmped encourages Affiliate to provide comments, suggestions and other feedback regarding the Online Store or FullyAmped. All such comments, suggestions and feedback will be non-confidential and FullyAmped shall own all rights to use and incorporate them into the Online Store and on any social media platform, including the use of Affiliate’s name and trademarks, in FullyAmped’s sole discretion, without payment or attribution to Affiliate. All use of FullyAmped’s Intellectual Property Rights by Affiliate require the prior written consent of FullyAmped and require proper intellectual property notices and attribution, as approved by FullyAmped in its sole discretion.
Notice of Infringement. If Affiliate believes that any third party content or materials available on a FullyAmped website infringe Affiliate’s Intellectual Property Rights, it will send FullyAmped notice at firstname.lastname@example.org, including: (i) Affiliate’s signature, (ii) Affiliate’s complete contact information, (iii) adequate identification of the copyrighted work and the infringing material, and (iv) statements of Affiliate’s good faith belief that such use is unauthorized and that such notice is accurate and authorized by the copyright owner under penalty of perjury.
4. Fees and Payments.
Prices. FullyAmped may, in its sole discretion, set the retail prices for any items offered on the Online Store and charge all appropriate taxes including sales tax. Affiliate does not control the pricing of any items offered on the Online Store.
Affiliate Percentage. FullyAmped will pay to Affiliate a percentage of the retail price of items purchased from the Online Store and not returned or subject to chargeback in the amount of 40% of the retail price paid, exclusive of taxes, shipping and other costs (the “Affiliate Percentage”). FullyAmped will pay you on a monthly basis the total Affiliate Percentage amounts for the prior month. If any items are later returned or subject to chargeback, FullyAmped may set off any future Affiliate Percentage payments to you by the amount(s) of the Affiliate Percentage subject to return or chargeback. You will provide correct and complete account details for payment of the Affiliate Percentage to your account.
Wholesale Purchases. If FullyAmped offers items for purchase by you at wholesale prices, you are not entitled to any Affiliate Percentage on such purchases. If you sell these items to consumers directly, you set the retail price and any profit above the wholesale price paid is yours. FullyAmped is not responsible for any returns with respect to items sold to you at wholesale prices. You shall not sell any items purchased at wholesale prices from FullyAmped on or through any other website, mobile application, social media site or other online platform.
5. Term and Termination
Term. These Terms and Conditions continue in effect until terminated as provided below.
Termination. Either party may terminate these Terms and Conditions, resulting in FullyAmped taking down the Online Store and permanently deleting all Affiliate Content, by providing 30 days’ prior written notice to the other party. Notwithstanding the foregoing sentence, FullyAmped may terminate these Terms and Conditions (and take down the Online Store and permanently delete any Affiliate Content) immediately and without prior notice: (i) if Affiliate Content violates or could violate any applicable law or infringes or could infringe the Intellectual Property Rights of any person, (ii) FullyAmped determines that Affiliate is acting, or has acted, in a way that has or may negatively reflect on or affect FullyAmped, other affiliates, any third parties or the CrossFit® brand, (iii) if Affiliate becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors, (iv) if Affiliate breaches any term of these Terms and Conditions or the Other Terms, or (v) for any other reason or no reason in FullyAmped’s sole discretion.
Effect of Termination. Upon termination of these Terms and Conditions, FullyAmped may take down the Online Store and delete any Affiliate Content. FullyAmped may or may not provide Affiliate the opportunity to retrieve Affiliate Content prior to it being deleted. Upon FullyAmped’s request, Affiliate will provide FullyAmped with written confirmation that Affiliate has discontinued all use of FullyAmped Content, including any combined designs incorporating Affiliate Content, other than products incorporating FullyAmped Content previously purchased by Affiliate when the Online Store was active and these Terms and Conditions were in effect. If any items are later returned or subject to chargeback, you will refund to FullyAmped the Affiliate Percentage payments previously made to you with respect to items returned or subject to chargeback.
Affiliate will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of these Terms and Conditions, (iii) not disclose Confidential Information to any third party, and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents who have a need to know such Confidential Information. Upon notice to FullyAmped, Affiliate may disclose Confidential Information to the limited extent required under any federal, state, or local law, statute, rule or regulation, subpoena or legal process, provided that Affiliate shall first give written notice to FullyAmped and the opportunity to oppose such disclosure.
Affiliate will indemnify, defend and hold each of the FullyAmped Parties harmless, at Affiliate’s expense, against any claim, suit, action, or proceeding (each, an “Action”) brought against any of the FullyAmped Parties by a third party not affiliated with FullyAmped to the extent that such Action is based upon or arises out of (i) unauthorized or illegal use of the Online Store by Affiliate, (ii) Affiliate’s noncompliance with or breach of any of these Terms and Conditions or the Other Terms, (iii) any alleged or actual infringement of any non-party’s Intellectual Property Rights related to acts of Affiliate or Affiliate Content, or (iv) any transaction or attempted transaction through the Online Store. FullyAmped will notify Affiliate in writing promptly following FullyAmped becoming aware of any such claim; and provide Affiliate (at Affiliate’s expense) with any and all information and assistance reasonably requested by Affiliate to defend and settle the claim. Affiliate shall not accept any settlement that (1) imposes an obligation on any of the FullyAmped Parties, (2) requires any of the FullyAmped Parties to make an admission, or (3) imposes liability not covered by these indemnifications or places restrictions on any of the FullyAmped Parties without such FullyAmped Party’s prior written consent.
8. Disclaimers and Limitations of Liability
Disclaimer of Warranties. FULLYAMPED AND ITS AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS OR SECURITY OF THE ONLINE STORE, ITEMS MADE AVAILABLE VIA THE ONLINE STORE, FULLYAMPED CONTENT, OR ANY SERVICES, OFFERINGS, OR OTHER INFORMATION PROVIDED FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE ONLINE STORE, FULLYAMPED CONTENT AND ANY OTHER RELATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WITHOUT LIMITING THE FOREGOING, NEITHER FULLYAMPED NOR ANYONE ASSOCIATED WITH FULLYAMPED REPRESENTS OR WARRANTS THAT THE ONLINE STORE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ONLINE STORE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE ONLINE STORE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE ONLINE STORE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE ONLINE STORE WILL OTHERWISE MEET AFFILIATE’S NEEDS OR EXPECTATIONS. FULLYAMPED DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE ONLINE STORE AND ANY RELATED SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FULLYAMPED BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS, REVENUE, DATA, CONTENT, GOODWILL OR BUSINESS OPPORTUNITIES, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
Limitation of Liability. THE AGGREGATE LIABILITY OF FULLYAMPED ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS WILL BE LIMITED TO THE TOTAL AFFILIATE PERCENTAGE AMOUNTS ACTUALLY EARNED BY AFFILIATE IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. AFFILIATE’S CLAIMS NOT MADE WITHIN ONE (1) YEAR AFTER THE FIRST EVENT GIVING RISE TO A CLAIM SHALL BE DEEMED WAIVED.
Third Party Products. FULLYAMPED DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS OR ITEMS INCORPORATED INTO OR ACCESSIBLE THROUGH THE ONLINE STORE. FULLYAMPED’S LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THESE TERMS AND CONDITIONS.
Agreement to Liability Limit. AFFILIATE UNDERSTANDS AND AGREES THAT ABSENT AFFILIATE’S AGREEMENT TO THESE DISCLAIMERS AND LIMITATION OF LIABILITY, FULLYAMPED WOULD NOT PROVIDE THE ONLINE STORE.
Amendment. FullyAmped may update and change any of these Terms and Conditions, including the Affiliate Percentage, at any time in FullyAmped’s sole discretion. If FullyAmped updates or changes these Terms and Conditions in a way that is materially adverse to Affiliate, the updated Terms and Conditions will take effect 30 days following notice to Affiliate.
No Waiver. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
Force Majeure. Neither party will be responsible for failure or delay of performance (other than payment failures) if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between FullyAmped and Affiliate as a result of these Terms and Conditions.
Compliance with Laws. Affiliate will comply with all laws in connection with Affiliate’s use of the Online Store, including any applicable export laws. Affiliate will not directly or indirectly export, re-export, or transfer access to the Online Store to prohibited countries or individuals or permit use of the Online Store by prohibited countries or individuals.
Severability. If any part of these Terms and Conditions is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms and Conditions will continue in effect.
Notices. Notices to FullyAmped must be sent to the contact address indicated below. FullyAmped may give electronic notices to Affiliate by email to Affiliate’s e-mail address(es) on record or by phone call to Affiliate’s phone number(s) provided via the Getting Started page or otherwise to FullyAmped. Affiliate must provide any updated contact information to FullyAmped by written notice to the address indicated below. Notices will be deemed delivered as of the date of actual receipt.
2451 Impala Dr. STE B
Carlsbad, CA 92010
Entire Agreement. These Terms and Conditions, together with the Other Terms, are the entire agreement between FullyAmped and Affiliate regarding the Online Store and supersede all other proposals and agreements, whether electronic, oral or written, between the parties. To the extent of a conflict between these Terms and Conditions and the Other Terms, these Terms and Conditions control. FullyAmped objects to and rejects any additional or different terms proposed by Affiliate, including click-through terms contained on Affiliate’s website or elsewhere.
Assignment. Affiliate may not assign or transfer these Terms and Conditions, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of Affiliate’s assets, change of control or operation of law, without FullyAmped’s prior written consent. FullyAmped may assign these Terms and Conditions to any affiliate or in the event of merger, reorganization, sale of all or substantially all of FullyAmped’s assets, change of control or by operation of law.
No Third Party Beneficiaries. Nothing in these Terms and Conditions, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.