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Terms and Conditions

1. ACCEPTANCE OF THE WEBSITE TERMS AND CONDITIONS OF USE

Please read the following terms and conditions of use (the “Terms and Conditions”) carefully before using our website, located at https://performancebydesign.co/au/ the “Website”), and operated by Performance by Design Pty Ltd., its subsidiaries, affiliates and related entities (“Performance by Design”, “we”, or “us”). These Terms and Conditions exempt Performance by Design and other persons from liability or limits their liability and contains other important provisions that you should read. These Terms and Conditions, together with any documents and additional terms they expressly incorporate by reference, govern your access to, and use of, all or part of this Website.

You may not use this Website if you (a) do not agree to these Terms and Conditions, (b) are not the older of (i) at least 18 years of age or (ii) legal age to form a binding contract with Performance by Design, or (c) are prohibited from accessing or using this Website or any of this Website’s contents, products or services by applicable law. Each time you access, view, or otherwise use the content, materials, products, or services available on or through the Website, whether as a guest or registered user, you certify that you have read, understand and accept and agree to be legally bound, both on your behalf and on behalf of the company you represent (collectively, “you”), by these Terms and Conditions and our Privacy Policy (the “Privacy Policy”) incorporated herein by reference. You represent and warrant that you have all the proper authority needed to bind the company you represent to these Terms and Conditions. You further agree that your use of the Website or any services made available on or through the Website signifies that you fully accept and agree to these Terms and Conditions. If you do not agree to these Terms and Conditions or the Privacy Policy, you are not granted permission to access or use the Website and must exit and discontinue your use of it immediately.

 

2. WHO WE ARE; HOW TO CONTACT US; PRIVACY POLICY

We are Performance by Design Pty Ltd, a company registered in Australia, Canada and USA with our registered offices at:

97 CHETWYND STREET, NORTH MELBOURNE,
VICTORIA, AUSTRALIA 3051
PHONE : AU – +61 421 634 859

19-66 Long Branch Avenue,
Toronto, ON M8W 3J4
PHONE : CA – +1 416 660 6738

312 ARIZONA AVE,
SANTA MONICA, CA 90401
PHONE : USA – +1 310 359 2616

If you would like to contact us for any reason, including to exercise your rights as described below, please phone us at +61416293355 or email us at: info@performancebydesign.co . All personal information we collect is subject to, and only used in accordance with, our Privacy Policy. Please take the time to read our Privacy Policy as it includes important terms which apply to you.

 

3. MODIFICATIONS TO THE TERMS AND CONDITIONS AND THE WEBSITE

Performance by Design reserves the right, in our sole discretion, to revise and update these Terms and Conditions from time to time, and reserves the right to make such changes without any obligation to notify past, current or prospective users and visitors of this Website. Any and all such modifications are effective immediately upon posting and your continued access to and use of the Website will be considered your consent to all changes. You agree and understand that it is your responsibility to periodically review the Terms and Conditions in order to be aware of any such modifications.

The information and material on this Website, and the Website itself may be changed, suspended or terminated at any time, in our sole discretion, without notice. We will not be liable for any such changes, suspension or termination, even if, for any reason, all or any part of the Website is restricted to users or unavailable at any time or for any period. For the avoidance of doubt, we may change, suspend or end any service or change prices prospectively at our sole discretion. The Website or any related software on the Website is not a storage service. You agree that we have no obligation to store, maintain or provide you a copy of any content or information that you or others provide, except to the extent required by applicable law.

 

4. LICENSE TO USE THE WEBSITE; ACCOUNT SET-UP; SECURITY

Subject to these Terms and Conditions, Performance by Design hereby grants you a personal, limited, terminable, revocable, non-exclusive, nontransferable, nonsublicenseable license to access and use the Website solely for use in accordance with these Terms and Conditions. You shall be responsible, at your sole expense, for procuring, operating, and maintaining the computer system, mobile device, hardware, software, and other items necessary or appropriate to enable you to exercise your rights and licenses hereunder. You are responsible for any security breaches or performance issues relating to your access and use of the Website. Without limiting any other provisions of these Terms and Conditions, all content, photographs, and other materials, including the Website, made available to you are the copyrighted work of Performance by Design or its licensors. Copying or distributing the Website or the Website Content (as defined below) is expressly prohibited.

The Website including content or areas of the Website may require user registration. As part of the registration process, you may be asked to click to agree to these Terms and Conditions or additional terms and you may be asked to select or submit a username and password. You may also be required to provide Performance by Design with certain information about yourself, including some types of personally identifiable information, such as your legal name, phone number, physical address, and email address. You represent that the information you provide to us via the Website must be correct, current, complete and up-to-date in all respects. Should any of the information you provide on the Website change, please login to your account and update such information directly on the Website. Your provision of registration information and any submissions you make to the Website through any functionality such as applications, constitutes your consent to all actions we take with respect to such information consistent with our Privacy Policy.

Any user name, password, or any other piece of information chosen by you or provided to you as part of our security procedures, must be treated as confidential, and you must not disclose it to any other person or entity and must keep it secret, safe and secure at all times. You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you logout from your account at the end of each session. You are solely responsible for any and all activities which occur under your account, including any password misuse or any unauthorized access. For the avoidance of doubt, Performance by Design will not be held responsible or liable for any misuse of your account, including in the event that a third party has access to and uses your password and account login in any way. We are not responsible for your failure to comply with this clause, or for any delay in shutting down your account after you have notified us.

We reserve the right at any time, to remove, disable or terminate your account, any user name, password, or other identifier, whether chosen by you or provided by us, in our sole discretion for any or no reason, including any violation of any provision of these Terms and Conditions. You understand that we cannot guarantee that your account will always be available to you or error free. We may terminate or suspend your account for any reason in our sole discretion with or without notice to you. Additionally, we reserve the right to stop offering any account feature of our Website or any portion thereof, without liability, at any time and for any reason, with or without cause. In the event of any such termination or suspension, information stored in your account may no longer be available to you. We have no obligation to make your account history available to you and you should not rely upon your account as your sole record of this information.

You are prohibited from attempting to circumvent and from violating the security of this Website including without limitation: (a) accessing content and data that is not intended for you; (b) attempting to breach or breaching the security and/or authentication measures which are not authorized; (c) restrict disrupt or disable service to users, hosts, servers or networks; (d) illicitly reproducing TCP/IP packet header; (e) disrupting network services and otherwise disrupting Website owner’s ability to monitor the Website; (f) accessing the Website through any automated means or with any automated features or devices, including the use of any robot, spider, data mining, web crawlers, scraping, or any other automatic data gathering or extraction device, process, or means; (g) introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful; (h) attack the Website via a denial-of-service attack, distributed denial-of-service attack, flooding, mail-bombing or crashing; and (i) otherwise attempt to interfere with the proper working of the Website.

 

5. CONDITIONS OF USE; USER SUBMISSIONS; SITE CONTENT STANDARDS

You agree that you will use the Website only in compliance with all laws, regulations and generally accepted practices and guidelines and in accordance with these Terms and Conditions. You may only use the Website as authorized in these Terms and Conditions and for no other purposes.

Please be aware that whenever you post information to the Website, that information may be accessible for other users. You should therefore choose carefully the information you post and that you provide to other users. The Website may allow you to contribute content, material, text, files, graphics, messages, postings, information and other materials and information for access, use and commentary by other visitors (collectively, “User Submissions”). Any and all User Submissions must comply with these Terms and Conditions and all applicable federal, state, local, and international laws and regulations. Upon your submission of User Submissions or other material or information to Performance by Design, you grant us and our affiliates and service providers, and each of their respective licensees, successors, and assigns, the a worldwide, perpetual, non-terminable, irrevocable, transferable, license to access, use, distribute, perform, reproduce, display, modify, create derivative works based upon, and sublicense, and to permit others to access, use, distribute, perform, reproduce, display, modify and create derivative works based upon the User Submissions, all without any compensation to you whatsoever. If you believe that any content or postings on the Website violate your intellectual property or other rights, please contact us as set forth in Section 14 of these Terms and Conditions.

Without limiting anything in these Terms and Conditions, you warrant and agree that you will not (and will not attempt to):

  1. Access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including commercial purposes.
  2. Reproduce, duplicate, copy, sell, trade, or resell any aspect of the Website for any purpose.
  3. Violate any applicable federal, state, local, or international law or regulation including, without limitation, any laws regarding the export of data or software intellectual property rights and other legal rights (including the rights of publicity and privacy of others).
  4. Access without authority, interfere with, damage, or disrupt any part of the Website, any equipment or network on which the Website is stored, any software used in the provision of the Website, or any equipment or network or software owned or used by any third party.
  5. Upload, post or otherwise transmit any material that is exploitive, obscene, harmful, threatening, abusive, harassing, hateful, defamatory, sexually explicit or pornographic, violent, inflammatory, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or other such prohibited ground or be otherwise objectionable.
  6. Stalk, harass, or otherwise attempt to exploit or disturb any individual or harm minors in any way.
  7. Upload, post or otherwise transmit any false, inaccurate or misleading information.
  8. Impersonate or attempt to impersonate Performance by Design, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses, or screen names associated with any of the foregoing).
  9. Upload, post or otherwise transmit through the Website any unsolicited or unauthorized advertisements, promotions, “spam”, “junk mail”, “chain letters”, “pyramid schemes,” “phishing”, contests, sweepstakes or other sales promotions, barter, or advertising or any other similar solicitation.
  10. Engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Performance by Design or users of the Website or expose them to liability.
  11. Cause annoyance, inconvenience, or needless anxiety or upset, embarrass, or alarm any other person.
  12. Promote any illegal activity, fraud, or advocate, promote, or assist any unlawful or fraudulent act.
  13. Give the impression that you originate from or are endorsed by us or any other person or entity, if this is not the case.

By submitting a User Submission, you declare and warrant that you own or have the necessary rights to submit the User Submission and have the right to grant the license hereof to us and our affiliates and service providers, and each of their respective licensees, successors, and assigns. You represent and warrant that all User Submissions comply with applicable laws and these Terms and Conditions.

You understand and agree that you, not Performance by Design, are fully responsible for any User Submissions you submit or contribute, and you are fully responsible and legally liable including to any third party for such content and its accuracy. We are not responsible or legally liable to any third party for the content or accuracy of any Information submitted by you or any other user of the Website.

Performance by Design has the right, without provision of notice to:

  1. Remove or refuse to post on the Website any User Submissions for any or no reason in our sole discretion.
  2. At all times, to take such actions with respect to any User Submission deemed necessary or appropriate in our sole discretion, including without limitation, for violating these Terms and Conditions.
  3. Take appropriate legal action and cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website, including all User Submissions.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS PERFORMANCE BY DESIGN AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY AND ALL CLAIMS AND ANY INVESTIGATIONS RELATING TO ANY USER SUBMISSIONS.

We have no obligation, nor any responsibility to any party to monitor the Website or use, and do not and cannot undertake to review material that you or other users submit to the Website. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party.

 

6. FORWARD LOOKING STATEMENTS

This Website contains “forward-looking statements” as that term is defined in the U.S. Private Securities Litigation Reform Act of 1995. Words such as “anticipate,” “estimate,” “expects,” “projects,” “intends,” “plans,” “believes,” “will” and similar words and terms indicate forward-looking statements. All forward-looking statements are Performance by Design’s present expectations of future events and are subject to a number of factors and uncertainties that could cause results to materially differ from those described on the Website. You are cautioned not to rely on such forward-looking statements. Performance by Design is not under any obligation, and expressly disclaims any obligation, to update or alter any forward-looking statements, whether as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable to Performance by Design, its affiliates or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements referred to in this Section.

 

7. INTELLECTUAL PROPERTY

As between you and Performance by Design, Performance by Design owns all patent, copyright, trademark, trade secret, ideas, concepts, know-how, documentation or techniques or other intellectual property rights that may exist in the Website, any photographs, graphics, texts, icons, buttons, data or information included in the Website (“Site Content”). All Site Content is protected pursuant to copyright, trademark, patent, and other applicable laws. You shall not remove or alter any copyright notice or any other proprietary notice on the Website or on any Site Content. All names, trademarks, symbols, slogans, or logos appearing on the Website are proprietary to Performance by Design or its licensors, clients, or suppliers. Use or misuse of these trademarks is expressly prohibited and may violate federal and state trademark law. Under no circumstances will you have any rights of any kind in or to the Site Content, other than the right to use the Site Content in accordance with these Terms and Conditions. No right, title or interest in or to the Website or any of the Site Content is transferred to you, and all rights not expressly granted herein are reserved by Performance by Design. Any use of the Website not expressly permitted by these Terms and Conditions is a breach of these Terms and may violate patent, copyright, trademark and other laws.

 

8. NO RELIANCE

The content on our Website is provided for general information purposes only. It is not intended to amount to advice on which you should rely. It is not intended to be a substitute for professional or other advice and we do not represent or warrant that the Website or any materials, information or content on the Website provides any such advices or assurances.

Although we make reasonable efforts to update the information on our Website, we make no representations, warranties or guarantees, whether express or implied, that the content on our Website is accurate, complete or up to date. Your use of the Website is at your own risk and Performance by Design has no responsibility or liability whatsoever for your use of this Website. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information if any information on the Website is inaccurate at any time without prior notice.

This Website may include content provided by third parties, including from other users and third-party licensors. All statements and/or opinions expressed in any such third party content, other than the content provided by Performance by Design, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of Performance by Design. Performance by Design is not responsible, or liable to you or any third party, for the content or accuracy of any third party materials.

 

9. SITE ACCESS

While Performance by Design endeavors to ensure that the Website is normally available 24 hours a day, it will not be liable if for any reason it is unavailable at any time or for any period.  Access to the Website may be suspended temporarily and without notice in case of a system failure, maintenance or repair or for reasons beyond our control. Performance by Design has the right to terminate or suspend your access to all or part of the Website for any or no reason, including any violation or suspected violation of these Terms and Conditions.

 

10. THIRD PARTY WEBSITES AND LINKS TO THIS SITE

For your convenience, this Website may provide links or references to third party sites. We make no representations about any other websites that may be accessed from this Website. If you choose to access any such sites, you do so at your own risk. We have no control over the contents of any such third party sites, and expressly disclaims all responsibility for such sites and for any loss or damage that may arise from your use of them. You are subject to any terms and conditions of such third party sites. Performance by Design encourages you to read the privacy policies and terms of use linked or referenced in connection with third party websites.

You may link to our homepage, provided you do so in a way that is in compliance with these Terms and Conditions, complies with all applicable laws and does not damage our reputation. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. Our Website must not be framed on any other site, nor may you create a link to any part of our Website other than the homepage. We reserve the right to withdraw linking permission without notice. The website to which you are linking must comply in all respects with these Terms and Conditions and applicable laws. You agree to cooperate with us in terminating any unauthorized framing or linking.

Performance by Design does not review the sites that link to this Website and is not responsible for any of those sites or the contents or materials of those sites that link to this Website. Your linking to any other sites or pages is at your own risk. We make no warranties or representations, express or implied, whether by statute, common law, custom, usage or otherwise, as to third party content including, without limitation, non-infringement of third party rights, title, integration, risks of program errors, corruption, viruses, hacking, intrusions, damage to equipment, loss of data, or unavailability or interruption of the website or operations, however caused, accuracy, availability, satisfactory quality, and merchantability or fitness for any particular purpose.

 

11. GOVERNING LAW, JURISDICTION, AND GEOGRAPHIC RESTRICTIONS

Performance by Design controls and operates this Website from its headquarters in Victoria, Australia. Performance by Design makes no representation that the Website, Site Content, services, products information, or other materials available on, in, or through the Website is appropriate or available for use outside the United States, Canada and Australia and access to them from territories where they are illegal is prohibited. If you use this Website from other locations, you are responsible for complying with applicable local laws. The Terms and Conditions are entered into in the State of Victoria and shall be governed by and construed in accordance with the laws of the State of Victoria and the laws of Australia, exclusive of its choice of law rules. Each party to the Terms and Conditions submits to the exclusive jurisdiction of the Federal Court of Australia and/or the courts of the State of Victoria, and waives any jurisdictional venue or inconvenient forum objections to such courts. In any action to enforce the Terms and Conditions, the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of the Terms and Conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that the Terms and Conditions shall otherwise remain in full force and effect.

 

12. DISCLAIMER OF WARRANTIES

YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE WEBSITE, SITE CONTENT, AND ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, SITE CONTENT, AND ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

NEITHER PERFORMANCE BY DESIGN NOR ANY AFFILIATES NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SERVICE PROVIDERS MAKES ANY WARRANTY, REPRESENTATION OR ENDORSEMENT WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, SUITABILITY, ACCURACY, CURRENCY OR AVAILABILITY OF THE WEBSITE OR SITE CONTENTS. WITHOUT LIMITING THE FOREGOING, NEITHER PERFORMANCE BY DESIGN NOR ANY AFFILIATES NOR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SERVICE PROVIDERS REPRESENTS OR WARRANTS THAT THE WEBSITE, SITE CONTENT, OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT COMMUNICATIONS TO OR FROM THIS WEBSITE WILL BE SECURE OR NOT INTERCEPTED. YOU ASSUME TOTAL RESPONSIBILITY, COST AND RISK FOR YOUR USE OF THIS WEBSITE, THE MATERIAL AND SITE-RELATED SERVICES. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE WEBSITE REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

WE CANNOT AND DO NOT GUARANTEE OR WARRANT THAT FILES OR DATA AVAILABLE FOR DOWNLOADING FROM THE INTERNET OR THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER DESTRUCTIVE CODE. YOU ARE SOLELY AND ENTIRELY RESPONSIBLE FOR YOUR USE OF THE WEBSITE AND YOUR COMPUTER, INTERNET AND DATA SECURITY. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DENIAL-OF-SERVICE ATTACK, DISTRIBUTED DENIAL-OF-SERVICE ATTACK, OVERLOADING, FLOODING, MAIL-BOMBING OR CRASHING, VIRUSES, TROJAN HORSES, WORMS, LOGIC BOMBS, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS FOUND OR ATTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

You understand that the technical processing and transmission of any information sent to or from our Website may be transferred unencrypted and involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices. Please be advised that we do not guarantee that any information sent to or from our Website will be secure during transmission, nor can we guarantee the confidentiality of any communication or material transmitted to us via the Website or the Internet, including personal information such as your name or address.

 

13. LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCE WILL PERFORMANCE BY DESIGN, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, SERVICE PROVIDERS, OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS BE LIABLE FOR DAMAGES OTHER THAN ACTUAL AND DIRECT DAMAGES. IN NO EVENT SHALL PERFORMANCE BY DESIGN’S LIABILITY EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN THE TOTAL LIABILITY OF PERFORMANCE BY DESIGN AND ITS LICENSORS SHALL NOT EXCEED TEN U.S. DOLLARS ($10).

IN AS MUCH AS PERMITTED BY LAW, PERFORMANCE BY DESIGN, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, SERVICE PROVIDERS, OR THEIR RESPECTIVE SUCCESSORS OR ASSIGNS SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY AMOUNT OR KIND OF LOSS OR DAMAGE THAT MAY RESULT TO YOU OR A THIRD PARTY (INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OR ANY LOSS OF INCOME, PROFITS, GOODWILL OR DATA) IN CONNECTION WITH (A) THE WEBSITE, SITE CONTENT OR THE PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE WEBSITE IN ANY WAY OR (B) THE USE, INABILITY TO USE OR THE RESULTS OF USE OF THE WEBSITE, ANY WEBSITES LINKED TO THE SITE OR THE MATERIAL ON SUCH WEBSITES, INCLUDING LOSS OR DAMAGE DUE TO VIRUSES THAT MAY INFECT YOUR COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF OR BROWSING OF THE WEBSITE OR YOUR USE OF ANY SITE CONTENT OR ANY WEBSITES LINKED TO THE WEBSITE; ALL THE FOREGOING REGARDLESS OF LEGAL THEORY, WHETHER OR NOT YOU OR WE HAD BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES, AND EVEN IF THE REMEDIES OTHERWISE AVAILABLE FAIL OF THEIR ESSENTIAL PURPOSE. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE WEBSITE, SERVICES THESE TERMS, OR IF YOU FEEL WE HAVE BREACHED THESE TERMS, IS TO STOP USING THE WEBSITE.

 

14. INDEMNIFICATION

To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Performance by Design, its affiliates, and their respective directors, officers, employees, agents, service providers, contractors, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to (a) your use of and access to the Website, products, and services; (b) your violation of any of these Terms and Conditions or Privacy Policy; (c) your fraud, violation of law, negligence, or willful misconduct; and (d) your violation of any third party rights, including intellectual property or privacy rights. This defense and indemnification obligation will survive the termination or cessation of these Terms and Conditions and your use of the Website. Performance by Design reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and you shall cooperate in all reasonable respects in such defense. You may not settle any claim that is referenced or otherwise covered by this Section without the prior written consent of Performance by Design.

 

15. COMPLAINT POLICY

If you believe that any content or posting on the Website violates your intellectual property or other rights, please notify Performance by Design at the email address set forth above, providing a comprehensive, detailed message setting forth the following information: (a) your name and the name of your company, if any; (b) your contact information, including your email address; (c) the nature and substance of your complaint, the specific rights at issue, and your basis for making the complaint, including the content or posting that is objectionable; and (d) the following statement: “The statements, representations, and assertions made in this message are true, complete, and accurate, and I have the full legal authority to make each and every such statement, representation, and assertion and to make and be granted any demand made in this message.”

 

16. WAIVER

No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof and those rights or remedies will still be available to Performance by Design. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

 

17. SEVERABILITY

If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.

 

18. ASSIGNMENT

Performance by Design may assign its rights and duties hereunder to any party at any time without any notice to you. You may not assign your rights or obligations hereunder without Performance by Design prior written consent. These Terms and Conditions are binding upon you, your heirs, executors, beneficiaries, successors and assigns.

 

19. ENTIRE AGREEMENT

These Terms and Conditions, and our Privacy Policy, constitute the sole and entire agreement between you and Performance by Design regarding the Website and govern your use of the Website and any transactions you may have with us through the Website. These Terms and Conditions completely replace and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. In the event any other rule, code of conduct, or other matter posted on the Website conflicts with these Terms and Conditions, these Terms and Conditions shall govern. No oral explanation or oral information given by any party shall alter the interpretation of these Terms. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.”

Last Updated: 03/11/2022

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