Welcome to Prokit! Prokit is an online platform dedicated to improving the athletic experience. We bring together athletes, coaches, trainers, pro athletes and health enthusiasts. Through Prokit, people can find ideas, advice, products and services related to the athletic experience, as well as physical and mental health.
We refer to the e-commerce marketplace on the Prokit Platform as the “Prokit.” If you visit or make a purchase or sale through the Prokit through www.theprokit.com or the related mobile app experience, then this Agreement is also between you and Prokit LLC. Prokit LLC and, as applicable, The Common Threads podcast and Common Threads Media are collectively referred to as “Prokit,” “we,” or “us” in this Agreement.
These Terms provide important information to you, including your agreement to grant rights to your content, our limitation of liability to you, your agreement to resolve any disputes by individual arbitration and to waive the right to participate in a class action (described in Section 8 below) and, if you choose to provide us with your phone number, your agreement to receive calls and text messages from us in accordance with applicable law. By agreeing to these Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or any type of representative actions.
We encourage you to review this Agreement carefully. Any use of the Prokit Platform, including browsing www.theprokit.com, shall be governed by the Agreement. If you do not agree to any of the Terms, you should stop using the Prokit Platform.
1. Using the Prokit Platform.
- Who can use it. You must be at least the age of majority in the state where you live to use the Prokit Platform. Use of the Prokit Platform by anyone under 13 years of age is strictly prohibited!
- Acceptable Use Policy. When using the Prokit Platform, you agree to abide by common standards of etiquette and act in accordance with the law, as described further in our Acceptable Use Policy.
- Termination. You may close your account at any time by going to account settings and disabling your account. We may permanently or temporarily suspend your use of the site or the service at any time for any reason, without any notice or liability to you. We may terminate your account at any time for any or no reason, including if you violate any Prokit policy (including the Acceptable Use Policy). Upon termination of your use of the service, certain provisions will survive termination, as detailed in Section 10.
- Feedback. We welcome your feedback and suggestions about how to improve the Prokit Platform. Feel free to submit feedback by sending an email to firstname.lastname@example.org. By submitting feedback in this or in any other manner to us, you agree to grant us the right, at our discretion, to use, disclose and otherwise exploit the feedback, in whole or part, without any restriction or compensation to you.
2. Your Content.
- Definition of Your Content. The Prokit Platform enables you to post materials, including without limitation photos, profile pictures, messages, posts, events, collections and commentary. You may also post reviews of third-party service providers, third-party products, or third-party services (“Reviews“). All materials that you post on the Prokit Platform will be referred to collectively as “Your Content.” You acknowledge and agree that, as part of using the Prokit Platform, Your Content may be viewed by the general public and may not be treated as private or confidential.
- License and Permission to Use Your Content. You hereby grant to us and our affiliates, licensees and sublicensees, without compensation to you or others, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute Your Content, or any portion thereof, throughout the world in any format, media or distribution method (whether now known or hereafter created) for the duration of any copyright or other rights in Your Content. Such permission will be perpetual and may not be revoked for any reason, to the maximum extent permitted by law. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in Your Content. If you identify yourself by name or provide a picture or audio or video recording of yourself, you further authorize us and our affiliates, licensees and sublicensees, without compensation to you or others, to reproduce, print, publish and disseminate in any format or media (whether now known or hereafter created) your name, voice and likeness throughout the world, and such permission will be perpetual and cannot be revoked for any reason, except as required by the applicable law. You further agree that we may use Your Content in any manner that we deem appropriate or necessary.
- Ownership. We acknowledge and agree that you, or your licensors, as applicable, retain ownership of any and all copyrights in Your Content, subject to the non-exclusive rights granted to us in the paragraph above, and that no ownership of such copyrights is transferred to us under this agreement. Further, with respect to Your Content in the form of photos, and subject to Prokit product and user experience considerations: (a) we will use commercially reasonable efforts to maintain the attribution of such photos as submitted by you, and (b) we will not license or sublicense to third parties individual photos or collections of photos, except in each case for Prokit Business Purposes. “Prokit Business Purposes” means any use in connection with a Prokit-branded or co-branded website, application, publication or service, or any use which advertises, markets or promotes the Prokit Platform, the services or the information it contains, Prokit, or its affiliates. Prokit Business Purpose specifically includes the use of Your Content on the Prokit Platform in connection with features and functions offered by Prokit to our users that enable them to view and interact with Your Content.
- Your Responsibilities for Your Content. By posting Your Content on the Prokit Platform, you represent and warrant to us that you have the ownership rights, or you have obtained all needed licenses or permissions from any necessary parties, to use Your Content in this manner. This includes obtaining the right to grant us the rights to the use of Your Content in accordance with this agreement. You are in the best position to judge whether Your Content is in violation of intellectual property or personal rights of any third-party. You accept full responsibility for avoiding infringement of the intellectual property or personal rights of others in connection with Your Content. You are responsible for ensuring that your content does not violate Prokit’s Acceptable Use Policy, or Copyright and Trademark Policy or any applicable law or regulation. You agree to pay all royalties, fees and any other monies owed to any person by reason of Your Content.
- Limits. We reserve the right to edit, abridge, or remove Your Content, in whole or part, for any reason (which may include a reported violation of our Acceptable Use Policy, or Copyright and Trademark Policy). We reserve the right to edit, refuse to post or remove Your Content submitted by you for any reason without notice. We do not guarantee that we will publish all of Your Content. If you seek to publish a Review, the requirements will be governed by our Review Policy.
3. Our Content and Materials.
- Definition of Our Content and Materials. All intellectual property in or related to the Prokit Platform (specifically including, but not limited to, our software, the Prokit marks, the Prokit logo, and Prokit buttons, badges, and widgets, but excluding Your Content), is the property of Prokit LLC, its subsidiaries and affiliates or its licensors (“Our Content and Materials“).
- No Endorsement or Verification. Please note that the Prokit Platform enables access to third-party content, products and services, and it offers interactions with third-parties over which we have no control. We assume no responsibility for, nor do we endorse or verify the content, offerings or conduct of third-parties (including but not limited to the products or services offered by third-parties or the descriptions of the products or services offered by third-parties). For example, Prokit does not conduct background checks or otherwise vet the professionals listed on the Prokit Platform. Participation or availability on the Prokit Platform does not amount to endorsement or verification by us. We make no warranties or representations with respect to the accuracy, completeness or timeliness of any content posted on the Prokit Platform by anyone.
- Restrictions. Except as expressly provided in these Terms, you agree not to use, modify, reproduce, distribute, sell, license, reverse engineer, decompile, or otherwise exploit Our Content and Materials without our express written permission. Prokit’s permission to you for your use of the Prokit Platform expressly excludes commercial use by you of any information concerning product descriptions or professional listings for the benefit of another merchant. You expressly are prohibited from any use of data mining, robots, or similar data gathering and extraction tools in your use of the Prokit Platform. You may view and print a reasonable number of copies of web pages located on the Prokit Platform for your own personal use, provided that you retain all proprietary notices contained in the original materials, including attribution to Prokit.
- Ownership. You acknowledge and agree that the Prokit Platform and Prokit marks will remain the property of Prokit. The content, information and services made available on the Prokit Platform are protected by U.S. and international copyright, trademark, and other laws, and you acknowledge that these rights are valid and enforceable. You acknowledge that you do not acquire any ownership rights by using the Prokit Platform.
4. Other Offerings on the Prokit Platform.
- Purchase of Goods through the Prokit. Prokit LLC and third-party sellers offer training plans, coaching services, camps and other products for sale on the Prokit Platform. The availability of products sold by third-parties on the Prokit Platform does not imply our endorsement or verification of the products or their descriptions.
- Third-Party Services. You may be provided the opportunity on the Prokit Platform to purchase services that are offered by third parties (collectively “Third Party Services“), including those offered by professionals on the Prokit Platform. The availability of any Third Party Services on the Prokit Platform does not imply our endorsement of the Third Party Services.
5. Reporting Violations of Your Intellectual Property Rights, Prokit Policies, or Applicable Laws
We have a special process for reporting violations of your intellectual property rights or other violations of Prokit policies or applicable laws.
- Copyright and Trademark Policy. We have adopted and implemented a Copyright and Trademark Policy. For more information, including detailed information about how to submit a request for takedown if you believe content on the Prokit Platform infringes your intellectual property rights, please read our Copyright and Trademark Policy. For your convenience, email email@example.com to submit your request.
- Reports of Other Violations. If you believe content on the Prokit Platform violates Prokit’s Acceptable Use Policy, or otherwise violates applicable law, you may email firstname.lastname@example.org.
We have no obligation to delete content that you personally may find objectionable or offensive. We endeavor to respond promptly to requests for content removal, consistent with our policies described above and applicable law.
6. Disclaimers and Limitations of Liability.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF Prokit ENTITIES TO YOU.
THE “Prokit ENTITIES” MEANS Prokit LLC, Prokit LLC, AND ANY SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, SUPPLIERS, LICENSORS AND PARTNERS, AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF EACH OF THEM. EACH PROVISION BELOW APPLIES TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW:
- WE ARE PROVIDING YOU THE Prokit Platform, SERVICES, INFORMATION, PRODUCTS, PRODUCT DESCRIPTIONS, AND THIRD-PARTY CONTENT ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, THE Prokit ENTITIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY AND COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
- THE Prokit ENTITIES MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOR: (i) CONTENT POSTED BY ANY THIRD-PARTY ON THE Prokit Platform, (ii) THE PRODUCT DESCRIPTIONS OR PRODUCTS, (iii) THIRD-PARTY SITES AND ANY THIRD-PARTY PRODUCT OR SERVICE LISTED ON OR ACCESSIBLE TO YOU THROUGH THE SITE, (iv) PLANTS OR SEEDS FROM THE EXCHANGES, AND (v) THE QUALITY OR CONDUCT OF ANY THIRD-PARTY YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SITE.
- YOU AGREE THAT UNDER THE MAXIMUM EXTENT PERMITTED BY LAW, THE Prokit ENTITIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT THE Prokit ENTITIES SPECIFICALLY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF THE Prokit ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE) ARISING OUT OF AND IN ANY WAY CONNECTED WITH YOUR USE OF, OR INABILITY TO USE, THE Prokit Platform OR PRODUCTS. YOUR USE OF THE Prokit Platform, PRODUCTS, INFORMATION, OR SERVICES IS AT YOUR SOLE RISK.
You agree to fully indemnify, defend, and hold the Prokit Entities and their directors, officers, employees, consultants, and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees), and other expenses that arise directly or indirectly out of or from: (a) your breach of any part of this agreement, including but not limited to the Acceptable Use Policy; (b) any allegation that any materials you submit to us or transmit to the Prokit Platform infringe or otherwise violate the copyright, patent, trademark, trade secret, or other intellectual property or other rights of any third party; (c) your activities in connection with the Prokit Platform or other websites to which the Prokit Platform is linked; and/or (d) your negligent or willful misconduct.
8. Dispute Resolution.
If you have a dispute with Prokit, you agree to contact us by emailing email@example.com to attempt to resolve the issue informally first. If we are not able to resolve the dispute informally, then this section will govern any legal dispute that relates to the Prokit Platform or involves our services.
- Binding Arbitration. You and Prokit agree that any dispute, claim or controversy arising out of or relating to this Agreement or to your use of the Prokit Platform (collectively “Disputes“) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. This means that you and Prokit both agree to waive the right to a trial by jury. Notwithstanding the foregoing, you may bring a claim against Prokit in “small claims” court, instead of by arbitration, but only if the claim is eligible under the rules of the small claims court and is brought in an individual, non-class, and non-representative basis, and only for so long as it remains in the small claims court and in an individual, non-class, and non-representative basis.
- Class Action Waiver. You and Prokit agree that any proceedings to resolve Disputes will be conducted on an individual basis and not in a class, consolidated, or representative action. This means that you and Prokit both agree to waive the right to participate as a plaintiff as a class member in any class action proceeding. Further, unless you and Prokit agree otherwise in writing, the arbitrator in any Dispute may not consolidate more than one person’s claims and may not preside over any form of class action proceeding.
- Arbitration Administration and Rules. The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules“) then in effect, except as modified by this “Dispute Resolution’ section. (The AAA Rules are available at http://www.adr.org or by calling the AAA at 1-800-778-7879).
- Arbitration Process. A party who desires to initiate the arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of arbitrators with relevant experience. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with AAA Rules.
- Arbitration Location and Procedure. Unless you and Prokit agree otherwise, the seat of the arbitration shall be in San Francisco, California. If your claim does not exceed USD$10,000, then the arbitration will be conducted solely on the basis of documents you and Prokit submit to the arbitrator, unless you request a hearing and the arbitrator then determines that a hearing is necessary. If your claim exceeds USD$10,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Hearings may be conducted by telephone or video conference, if requested and agreed to by the parties.
- Arbitrator’s Decision and Governing Law. The arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized by law. The arbitrator will render an award within the timeframe specified in the AAA Rules. Judgment on the arbitration may be entered in any court having jurisdiction thereof. Any award of damages by an arbitrator must be consistent with the “Disclaimers and Limitations of Liability” section above. The arbitrator may award declaratory or injunctive relief in favor of the claimant only to the extent necessary to provide relief warranted by the claimant’s individual claim.
- Fees. Each party’s responsibility to pay the arbitration filing, administrative and arbitrator fees will depend on the circumstances of the arbitration and are set forth in the AAA Rules.
You are not required to agree to receive promotional text messages, calls or pre-recorded messages as a condition of using the Prokit Platform. By electing to submit your phone number to us and agreeing to these Terms, you agree to receive communications from the Prokit Entities, including via email, text messages, calls, pre-recorded messages, and push notifications, any of which may be generated by automatic telephone dialing systems. These communications include, for example, operational communications concerning your account or use of the Prokit Platform, updates concerning new and existing features on the Prokit Platform, communications concerning promotions run by us or third parties, and news relating to the Prokit Platform and industry developments. Standard text message charges applied by your telephone carrier may apply to text messages we send.
If you wish to stop receiving promotional emails or promotional text messages, we provide the following methods for you to opt-out or unsubscribe: (a) follow the instructions we provide in the email or initial text message for that category of promotional emails or text messages or (b) if you have an account on the Prokit Platform, you may opt-out or unsubscribe using your settings.
- Notice for California Users. Under California Civil Code Section 1789.3, California users of the Prokit Platform are entitled to the following specific consumer rights notice: The services are provided by Prokit LLC, 336 Bon Air Ctr., #101, Greenbrae, CA 94904, USA. If you have a question or complaint regarding the Service, please contact Prokit at firstname.lastname@example.org or by writing to our mailing address. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs which may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
- Supplemental Terms for Certain Services. Certain services offered on the Prokit Platform may require you to enter into a separate agreement and/or be subject to additional terms. For example: placement of advertisements, participation in brand services, offering products for sale in the Prokit, or use of Site Designer each require you to enter into a separate agreement with terms specific to that service. In the event of any conflict between this Agreement and the terms of that separate agreement, the terms of that separate agreement will control.
- Application Provider Terms. If you access the Prokit Platform through a Prokit application, you acknowledge that this agreement is between you and Prokit only, and not with another application service or application platform provider (such as Apple, LLC or Google LLC), which may provide you the application subject to its own terms.
- Controlling Law and Jurisdiction. This agreement will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to their conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a federal or state court located in San Francisco, California for any actions for which the arbitration provision, as set forth in Section 8, does not apply.
- Export. The Prokit Platform is controlled and operated from our United States offices in California. Prokit software is further subject to United States export controls. No software for Prokit may be downloaded or otherwise exported or re-exported in violation of any applicable laws or regulations. You represent that you are not (1) located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, and (2) listed on any U.S. government list of prohibited or restricted parties.
- Changes. We reserve the right at any time to:
- change the terms and conditions of this Agreement, consistent with applicable law;
- change the Prokit Platform, including eliminating or discontinuing any information or services or other features in whole or in part; and
- deny or terminate your Prokit account, or use of and access to the Prokit Platform.
- Languages. English is the authoritative text of this Agreement and all communications, notices, arbitrations and other actions and proceedings relating to this Agreement will be made and conducted in English, even if we choose to provide translations of this Agreement into the native languages in certain countries.
- Assignment. No terms of this Agreement, nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with Prokit’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Prokit may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion.
- Waiver. Our failure to assert a right or provision under this Agreement will not constitute a waiver of such right or provision.
- Headings. Any heading, caption, or section title contained is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof.
- Further Assurances. You agree to execute a hard copy of this Agreement and any other documents, and take any actions at our expense that we may request to confirm and effect the intent of this Agreement and any of your rights or obligations under this Agreement.
- Entire Agreement/ Severability. This Agreement supersedes all prior terms, agreements, discussions and writings regarding the Prokit Platform and constitutes the entire agreement between you and us regarding the Prokit Platform. If any part of this Agreement is found to be unenforceable, then that part will not affect the enforceability of the remaining parts of the Agreement, which will remain in full force and effect.
- Survival: The following provisions will survive expiration or termination of this Agreement: Section 2 (Your Content), Section 3 (Restrictions) and 3(ownership), Section 6 (Disclaimers and Limitations of Liability), Section 7 (Indemnification), Section 8 (Dispute Resolution) and Section 10 (Miscellaneous).
- Contact. Feel free to contact us by sending an email to email@example.com with any questions about this agreement.
336 Bon Air Ctr., #101
Greenbrae, CA 94904, USA
Last modified as of June 1, 2019