Terms of Service

OVERVIEW

This website is operated by Performance Designed Products LLC (“PDP”). Throughout the site, the terms “we”, “us” and “our” refer to PDP. PDP offers to you, the user, (a) this website, including all information, tools and services available from this site, (b) its social media pages/accounts on third-party social media websites or mobile or other platforms, (c) sweepstakes, contests and/or other promotions offered or conducted by PDP from time to time, and (d) any new features or tools that PDP chooses to make available from time to time (collectively, the “Service”), all conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our site and/or purchasing something from us, you engage in our Service and agree to be bound by the following terms and conditions (“Terms of Service,” “Terms”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.

Please read these Terms of Service carefully before accessing or using our website. By accessing or using any part of the site, you agree to be bound by these Terms of Service. IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, DO NOT USE OR ACCESS THE WEBSITE OR USE ANY SERVICES. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

SECTION 1 - ONLINE STORE TERMS

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state of residence, or that you are the age of majority in your state of residence and you have given us your consent to allow any of your minor dependents to use this site.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

You must not transmit any worms or viruses or any code of a destructive nature.

A breach or violation of any of the Terms will result in an immediate termination of your Services.

SECTION 2 - GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the website through which the service is provided, without express written permission by us.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.

This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site. You agree that it is your responsibility to monitor changes to our site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 - PRODUCTS OR SERVICES (if applicable)

Certain products or services may be available exclusively online through the website. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy.

We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected.

SECTION 6 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

For more detail, please review our Returns Policy.

SECTION 7 - THIRD-PARTY LINKS

Certain content, products and services available via our Service may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 8 - USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS

If, at our request, you send certain specific submissions (for example contest entries) or without a request from us you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, 'comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.

We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Service.

You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.

SECTION 9 - PERSONAL INFORMATION

Your submission of personal information through the store as well as any gathered via SMS/text will be governed by our Privacy Policy. To view our Privacy Policy, see http://pdp.com/en/privacy-policy/.

SECTION 10 - MOBILE TEXT MESSAGING

By consenting to PDP’s SMS/text messaging service, you agree to receive recurring SMS/text messages with service-related and promotional messages, including promotions, specials, and other marketing offers (e.g., cart reminders) from and on behalf of PDP via text messages through your wireless provider to the mobile number you provided, even if your mobile number is registered on any governmental Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology.

You understand that you do not have to sign up to receive SMS/text messages from PDP in order to make any purchases, and your consent is not a condition of any purchase from PDP. Your participation in receiving SMS/text messages is completely voluntary.

We do not charge for any aspect of the Service, including SMS/text messages but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Standard message and data rates may apply from your wireless provider. Please check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.

You may opt-out of receiving SMS/text messages from PDP at any time. Text the single keyword command STOP to +1 (855) 912-0873. You will receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other PDP mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Service support or assistance, text HELP to +1 (855) 912-0873 or email support@pdp.com.

We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.

SECTION 11 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 12 - PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

SECTION 13 - DISCLAIMER OF WARRANTIES

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION. THE SERVICES ARE PROVIDED ON AN “AS IS” AND "AS AVAILABLE" BASIS AND WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PDP HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, GUARANTEES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUALITY AND NONINFRINGEMENT.

PDP make no warranty (i) against interference of your enjoyment of the Services; (ii) that the Services will be functional, uninterrupted, error-free or bug-free or meet your requirements; (iii) regarding the security, reliability, quality or timeliness of the Services; or (iv) that any errors, bugs or failures in the Services will be corrected. Any content or material downloaded through your use of the Services is at your own discretion and risk and you will be solely responsible for any damage or loss of data occurring on your computer system or any other loss or damages of any kind resulting from your use of the Services or any other content. No advice, course of conduct or information, whether oral or written, obtained by you from PDP or any party or through the Services shall create any warranty unless expressly stated in these Terms. You acknowledge and agree that PDP might not be able to offer the Services at all in the absence of the foregoing disclaimers and limitations.

SECTION 14 - LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCE SHALL PDP, ITS PARENTS, AFFILIATES OR SUBSIDIARIES OR ANY LICENSOR OR PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR REVENUES, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, LOSS OF CONFIDENTIAL INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURE TO RECEIVE OR BACKUP YOUR DATA (OR ARCHIVED DATA) OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICE, ANY THIRD PARTY CONTENT, SOFTWARE OR FUNCTIONS USED IN CONNECTION WITH THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PDP, ITS PARENTS, AFFILIATES AND SUBSIDIARIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF PDP, ITS PARENTS, AFFILIATES AND SUBSIDIARIES TO YOU, ARISING UNDER ANY PROVISION OF THESE TERMS OF SERVICE SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO PDP AND IN NO EVENT BE MORE THAN TWO HUNDRED FIFTY DOLLARS ($250). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

SECTION 15 - INDEMNIFICATION

You agree to indemnify, reimburse, defend and hold harmless PDP and its parents, affiliates, subsidiaries, and each of their respective officers, directors, employees, representatives, agents, attorneys, licensors, contractors, suppliers, successors and assigns from and against any claims, proceedings, losses, damages, liabilities, costs or expenses (including, but not limited to, reasonable attorneys’ fees and legal expenses) of any kind arising out of: (i) your access to or use of the Services or any third party content and services; (ii) any breach by you of your obligations under these Terms of Service; (iii) your violation of the rights of a third party, including any infringement of any intellectual property, proprietary right or trade secret of any person or entity, or of any privacy or consumer protection right that is implicated herein; (iv) any violation of law; or (v) your negligence or misconduct. These obligations will survive any termination, expiration, cancellation or modification of the Terms of Service. PDP reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify against, and you agree to fully cooperate in PDP’s defense of such matter.

SECTION 16 - SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 17 - TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms of Service for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly may deny you access to our Services (or any part thereof).

SECTION 18 - GOVERNING LAW

All disputes, rights and obligations arising out of or in connection with these Terms of Service are construed, governed, interpreted and enforced according to the laws of the State of California in the United States without regard to conflict of law principles. The forum and venue for any dispute shall be in San Diego County, California, in the United States, and you irrevocably consent to the exclusive jurisdiction and venue of such courts.

SECTION 19 - BINDING ARBITRATION

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY. IT AFFECTS YOUR RIGHTS.

1. Most of your concerns about the Services can be addressed simply by contacting PDP’s Customer Service Department at (800) 331-3844 in the United States or visiting support.pdp.com for customers or persons outside North America. IN THE UNLIKELY EVENT THAT A CONTROVERSY OR CLAIM RELATING TO A DISPUTE (“CLAIM”) IS NOT OTHERWISE RESOLVED THROUGH DIRECT DISCUSSIONS, SUBJECT TO APPLICABLE LAWS IT SHALL THEN BE RESOLVED BY FINAL AND BINDING ARBITRATION ADMINISTERED BY JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”), IN ACCORDANCE WITH ITS STREAMLINED ARBITRATION RULES AND PROCEDURES OR SUBSEQUENT VERSIONS THEREOF (“JAMS RULES”). THE JAMS RULES FOR SELECTION OF AN ARBITRATOR SHALL BE FOLLOWED, EXCEPT THAT THE ARBITRATOR SHALL BE EXPERIENCED AND LICENSED TO PRACTICE LAW IN CALIFORNIA. ALL PROCEEDINGS BROUGHT PURSUANT TO THIS PARAGRAPH WILL BE CONDUCTED IN SAN DIEGO COUNTY, CALIFORNIA.
2. This Arbitration Provision is intended to be interpreted broadly, and it includes any dispute: (1) arising out of or relating in any way to the Services or to these Terms of Service or to the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or otherwise; (2) that arose either before this Arbitration Provision or Terms of Service was entered into by you and us or that arises after this Arbitration Provision or Terms of Service is terminated; and (3) that currently is the subject of a purported class action litigation in which you are not a member of a certified class. Notwithstanding the foregoing, this Binding Arbitration Provision does not preclude you from bringing an individual action in small claims court or from informing any federal, state or local agencies or entities of your dispute. Such agencies or entities may be able to seek relief on your behalf.
3. NO CLASS ACTIONS & WAIVER OF JURY TRIAL: YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THIS INCLUDES NOT BRINGING CLAIMS IN AND NOT BEING ABLE TO PARTICIPATE IN CLASS ARBITRATIONS OR CLASS ACTIONS. YOU AND WE ALSO AGREE TO WAIVE OUR RIGHTS TO A TRIAL BY JURY.
4. To the extent either declaratory or injunctive relief is sought, such relief can be awarded only to the extent necessary to provide the relief warranted by a party's individual claim.

SECTION 20 - NOTICES

By using the Services, you consent to receive all communications, notices and disclosures in connection with the Services (collectively, “Notices”) in written, SMS or electronic form. In addition to the foregoing, all Notices from you or Your representatives to PDP must be in writing and will be deemed given when hand delivered or mailed by regular US mail, registered or certified mail, or overnight courier, to the below address, or to such other names or addresses as PDP designates by Notice.

Performance Designed Products LLC
Attn: Corporate & Legal Affairs
9179 Aero Drive
San Diego, CA 92123

SECTION 21 - ENTIRE AGREEMENT

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules posted by us on this site or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 22 - CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time at this page.

We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our website. It is your responsibility to check our website periodically for changes. Your continued use of or access to our website or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 23 - CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at legal@pdp.com.

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AUSTRALIAN CUSTOMERS

When goods or are sold to customers in Australia, in the course of PDP carrying on business in Australia, the above terms and conditions are qualified as follows:

• No attempt is made to exclude the operation of the Australian Consumer Law (“ACL”) where it applies to a transaction;
• No update, change or replacement any part of these Terms of Service (including the modification of a Service, the discontinuance of a Service or a change to any prices) by PDP will operate retrospectively, and the customer will always have the option not to proceed with a new transaction under revised terms;
• A decision to refuse service to an individual will not be based on considerations which would constitute an infringement of the Age Discrimination Act 2004, the Disability Discrimination Act 1992 and/or the Sex Discrimination Act 1984;
• No attempt is made to exclude consumer guarantees implied under part 3-2 of the Australian Consumer Law. Nevertheless, PDP’s liability in respect of the breach of a consumer guarantee is limited, at PDP’s option, to:

1. in the case of goods, the replacement of the goods or the supply of equivalent goods (or the payment of the cost to the customer of the replacement or supply), or the repair of the goods (or the payment of the cost to the customer of the repair)
2. in the case of services, the supply of the services again or the payment of the cost to the customer of having the services supplied again;

• Personal information will be handled not only in accordance with PDP’s privacy policy but also in accordance with the Privacy Act 1988 (Cth);
• Although no general warranty is provided in relation to the security of information held by PDP, PDP will take reasonable steps to protect personal information from misuse, interference or loss, and from unauthorised access, modification or disclosure;
• Any determination by PDP that you have breached this Agreement will be made on reasonable grounds.

Effective Date: December 7, 2021