TERMS AND CONDITIONS
Terms and Conditions of Service and Sale.
Welcome to the Performer 8 website!
IT IS IMPORTANT THAT YOU CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF SERVICE & SALE (THESE “TERMS”) BEFORE ACCESSING, USING, SUBSCRIBING OR PLACING AN ORDER OVER www.au.performer8.com OR OTHER OF OUR SITES WHICH LINK TO THESE TERMS.
THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES INCLUDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION (SEE SECTIONS 8, 9, 10, 16, 17, AND 18). ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 18. THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT.
The use of www.au.performer8.com (“Website”), which is owned and maintained by Wolfson Brands (U.K.), Ltd. (“Wolfson,” “we,” “our,” “us”), are governed by these Terms. We offer the Website, including all information, tools, and services available from the Website to you, the user, conditioned upon your acceptance of all terms and conditions stated herein. By accessing, using, subscribing, or placing an order over the Website, you agree to the terms and conditions set forth herein. If you do not agree to these Terms in their entirety, you are not authorized to use the Website in any manner or form whatsoever.
Navigating Through These Terms
- ONLINE STORE TERMS
- WEBSITE USER CONDUCT AND RESTRICTIONS AND GENERAL TERMS
- INFORMATION YOU PROVIDE
- ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
- MODIFICATIONS TO THE SERVICE AND PRICES
- PRODUCTS OR SERVICES
- YOUR INDIVIDUAL RESULTS WILL VARY
- NO MEDICAL DIAGNOSIS OR TREATMENT
- FOOD ALLERGY AND OTHER HEALTH DISCLAIMER
- ACCURACY OF BILLING AND ACCOUNT INFORMATION
- ORDER PLACEMENT AND ACCEPTANCE; METHOD OF PAYMENT
- SHIPPING FEES
- CANCELLATION AND REFUND POLICY
- USER COMMENTS, FEEDBACK, TESTIMONIALS AND OTHER SUBMISSIONS
- DISCLAIMER OF WARRANTIES
- LIMITATION OF LIABILITIES
- DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER
- WOLFSON’S ADDITIONAL REMEDIES
- NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT AGENT
- NO WAIVER
- GOVERNING LAW AND VENUE
- ACTS OUT OF WOLFSON’S CONTROL-FORCE MAJEURE
- ELECTRONIC COMMUNICATIONS
- YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES
- TERM AND TERMINATION
- ENTIRE AGREEMENT
- CHANGES TO TERMS
- CONTACT INFORMATION
- COMPANY ADDRESS
1.ONLINE STORE TERMS
By agreeing to these Terms, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Website.
You may not use our products for any illegal or unauthorized purpose, nor may you, in the use of the Website or the service provided over the Website, 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 over the Website and access thereto.
2.WEBSITE USER CONDUCT AND RESTRICTIONS AND GENERAL TERMS
All aspects of our Website are protected by U.S. and international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the Website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. Wolfson has exclusive worldwide rights in the Performer 8 trademarks and logo, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, trademark, trade name, copyrighted material, patent, trade dress, trade secret, or confidential information owned by or licensed to Wolfson.
Subject to your continued strict compliance with these Terms, Wolfson provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicensable, non-transferable license to use the Website. You acknowledge and agree that you do not acquire any ownership rights in any material protected by intellectual property laws.
Your use of any information or materials on this Website is entirely at your own risk. It shall be your own responsibility to ensure that any products, services or information available through this Website meet your specific requirements.
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.
In addition to other prohibitions as set forth in these Terms, 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, provincial 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.
The headings used in this Agreement are included for convenience only and will not limit or otherwise affect these Terms.
- Visit the Website, and other sites accessible from the Website.
- Register with and buy products or services on the Website
- Take part in promotions, competitions, customer surveys and questionnaires.
- Contact us, for example in writing, or by calling customer service
4.INFORMATION YOU PROVIDE
You warrant that the information you provide to us, whether in connection with any purchase or otherwise, is truthful and accurate. You are responsible for maintaining the confidentiality of any user name and password you may use to access your Wolfson user account.
5.ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
While we strive to present current and accurate information on the Website, we cannot guarantee that all information will be current and/or accurate all of the time. Occasionally there may be information on our Website 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).
The material and information made available on this Website are 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 Website is at your own risk.
This Website 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 Website at any time, but we have no obligation to update any information on our Website except as required by law. You agree that it is your responsibility to monitor changes to our Website. 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.
6.MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice for future purchases.
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.
7.PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through the Website.
We have made every effort to display as accurately as possible the colors and images of our products that appear on the Website. We cannot guarantee that your computer monitor's or other device’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 Website 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.
8.YOUR INDIVIDUAL RESULTS WILL VARY
Every person has a different body and history, and, therefore, individual results will vary when using our products. YOUR INDIVIDUAL RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOU, SUCH AS YOUR HEALTH, GENETICS, DIET, AND LEVEL OF EXERCISE.
9.NO MEDICAL DIAGNOSIS OR TREATMENT
Wolfson is committed to helping you “live life better” and improve your lifestyle. You understand, however, that our products are NOT drugs, and that our products and the statements on the Website or otherwise provided to you in e-mails and other communications have never been evaluated by the U.S. Food and Drug Administration (FDA), and that our products and the information provided to you are NOT intended to diagnose, treat, cure, mitigate or prevent any disease, whether acute or chronic. They are intended to assist you in “living life better.”
Wolfson endeavors to provide you with accurate information about our products. You understand and agree that the information Wolfson conveys about our products is obtained from independent third parties such as scientific reports, scientific articles, news agencies, and scientific/research entities. Wolfson does not warrant or represent that such information is error-free, and Wolfson does not represent or endorse any third parties or the methods that they use to arrive at their conclusions. All product specifications, performance data, and other information on the website is for informational and illustrative purposes only, and do not constitute a guarantee or representation that the products will conform to such specifications or performance data. Wolfson does not warrant or represent that your results will match those of others who use our products.
As with any dietary supplement, you should consult your physician prior to using Wolfson’s products. Please discontinue use of any product if you experience any side effects.
10.FOOD ALLERGY AND OTHER HEALTH DISCLAIMER
If you have any food allergy, or an individual or familial history of any diseases, it is even more important to consult your physician prior to using Wolfson’s products.
11.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 e-mail 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.
12.ORDER PLACEMENT AND ACCEPTANCE; METHOD OF
You agree that any products or services that you purchase from us and/or our Website will be used for your personal, non‐commercial use. You agree that you will not re‐sell, re‐distribute, or export any product that you order from the Website.
We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. You must contact us immediately at email@example.com. in order to request modification or cancellation of your pending order. Please refer to Section XIV below for more information. We reserve the right to accept or deny shipment to anyone for any reason. In the event we deny your order, your payment will be refunded to the card provided at the time of checkout.
Your order is conditioned upon you reaffirming your agreement to this Agreement. Once we receive your authorized order and a verified form of payment has been received, we will promptly place your order in line for shipment or delivery. All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product. If the availability of any product is delayed and you do not wish to substitute the product, upon your request, we will cancel your order and if previously charged, your payment card will be fully refunded for that specific order.
We do not accept orders from dealers, wholesalers, or customers who are resellers or who intend to resell items offered on the Website. If we discover that you are placing orders with the intent to resell items offered on the Website, we will immediately cancel your order, suspend or terminate your account, and, at our option, pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as attempting to purchase or purchasing products through the use of fake or stolen cards, we will report you to federal, state, and/or local enforcement authorities and take any additional legal action deemed appropriate by Wolfson.
We reserve the right 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 at our sole and exclusive discretion.
All advertised prices are in, and all payments shall be in, U.S. Dollars. You can place your Performer 8 order using a Visa, MasterCard or American Express credit or debit card payment. We also offer Buy Now Pay Later as payment methods.
Your payment method will be debited with the descriptor “Performer 8”.
Unless otherwise stated on the Website at the time of purchase, we reserve the right to add applicable shipping and handling fees to your order. Unless otherwise stated, we will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed and verified order. Accurate shipping address and phone number information is required. Although we may provide delivery or shipment timeframes or dates, such dates are good‐faith estimates and are subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery. If your order will be delayed, we will contact you at the e‐mail address you provided when placing your order. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third party carrier. We reserve the right to reject orders where the stated delivery address is within a geographic region that we do not service.
14.CANCELLATION AND REFUND POLICY
You are entitled to cancel your order for any reason before the product is shipped to you, but no later than forty-eight (48) hours after your order is placed.
The easiest way to cancel an order is to send a written notice of cancellation by e-mail to firstname.lastname@example.org..
For refunds after you have received your product, we are so confident in our products, that we back them with a 60-day money back guarantee. Please visit our Refund Policy for more information prior to purchase.
15.USER COMMENTS, FEEDBACK, TESTIMONIALS AND OTHER SUBMISSIONS
Wolfson is pleased to hear from our customers and welcomes their comments regarding our products and services. Testimonials represent the unique experience of the individual providing the testimonial, and do not necessarily reflect the experience that you may have using our products and services. Your results will vary. If you submit a testimonial, product review, or other statement to Wolfson, or publish a testimonial, product review, or other statement in other media, including social media, you grant us the irrevocable, worldwide and royalty-free right and license to use it and any other information provided by you in connection with it in any and all forms of media without any compensation to you. Any claim for moral rights is waived by you.
This Website may include a variety of features, such as bulletin boards, web logs, chat rooms, and email services, which allow feedback to us and real‐time interaction between users, and other features which allow users to communicate with others. Responsibility for what is posted on bulletin boards, web logs, chat rooms, and other public posting areas on the Website, or sent via any email services on the Website, lies with each user ‐ you alone are responsible for the material you post or send. We do not control the messages, information or files that you or others may provide through the Website. It is a condition of your use of the Website that you do not:
- Restrict or inhibit any other user from using and enjoying the Website.
- Use the Website to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
- Interfere with or disrupt any servers or networks used to provide the Website or its features, or disobey any requirements, procedures, policies or regulations of the networks we use to provide the Website.
- Use the Website to instigate or encourage others to commit illegal activities or cause injury or property damage to any person.
- Gain unauthorized access to the Website, or any account, computer system, or network connected to this Website, by means such as hacking, password mining or other illicit means.
- Obtain or attempt to obtain any materials or information through any means not intentionally made available through this Website.
- Use the Website to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law.
- Use the Website to post or transmit any information, software or other material that violates or infringes upon the rights of others, including material that is an invasion of privacy or publicity rights or that is protected by copyright, trademark or other proprietary right, or derivative works with respect thereto, without first obtaining written permission from the owner or rights holder.
- Use the Website to post or transmit any information, software or other material that contains a virus or other harmful component.
- Use the Website to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising.
- Use the Website to advertise or solicit to anyone to buy or sell products or services, or to make donations of any kind, without our prior express written approval.
- Gather for marketing purposes any email addresses or other personal information that has been posted by other users of the Website.
We may host message boards, chats and other private/public forums on the Website and on other platforms. Any user failing to comply with the terms and conditions of this Agreement may be expelled from and refused continued access to, the message boards, groups, chats or other such forums in the future. Wolfson or its designated agents may remove or alter any user‐created content at any time for any reason. Message boards, chats and other public forums are intended to serve as discussion centers for users and subscribers. Information and content posted within these public forums may be provided by Wolfson staff, Wolfson's outside contributors, or by users not connected with Wolfson, some of whom may employ anonymous user names. Wolfson expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on information obtained through these forums. The opinions expressed in these forums are solely the opinions of the participants, and do not reflect the opinions of Wolfson or any of its subsidiaries or affiliates.
Wolfson has no obligation whatsoever to monitor any of the content or postings on the message boards, chat rooms or other public forums on the Websites. However, you acknowledge and agree that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors.
16.DISCLAIMER OF WARRANTIES EXCEPT WHERE OTHERWISE PROHIBITED BY APPLICABLE LAW:
THE WEBSITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE WEBSITE OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
17.LIMITATION OF LIABILITIES
NOTHING IN THESE TERMS IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT, OR LIABILITY THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND IN SUCH INSTANCES OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED.
18.DISPUTE RESOLUTION BY BINDING ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY GOVERNING LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS & CONDITIONS OF SERVICE AND SALE AND THE AGREEMENT AS A COURT WOULD.
Notwithstanding the foregoing, and as an exception to final and binding confidential arbitration, you and Wolfson both retain the right to pursue, in small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class and non-representative) basis, including overdue account matters within the small claims court’s jurisdiction. Wolfson will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is and remains pending in that court on an individual basis. The following claims shall not be subject to final and binding arbitration and must be adjudicated only in the state or federal courts located in New York, New York: (i) any dispute, controversy, or claim relating to the infringement or validity of our proprietary rights, including without limitation, trademarks, service marks, trade dress, copyrights, trade secrets, or patents, or the intellectual property rights of a third party; or (ii) an action by Wolfson for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief, against you for breach or threatened breach of this Agreement. You expressly agree to refrain from bringing or joining any claims that are excluded from final and binding arbitration pursuant to this subsection “b” in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration. Small claims matters may be filed in any small claims court with personal and subject matter jurisdiction over the parties. For all other matters excluded from final and binding arbitration by this subsection “b,” the parties consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York, and forever waive any challenge to said courts’ jurisdiction and venue.
Required Pre-Dispute Procedures
We acknowledge and agree that before initiating any Claim against the other, we agree to first contact the other with a written description of the dispute, which shall include all relevant documents and information, and the proposed resolution. You may send the written description of any dispute you have with us by sending an e-mail to email@example.com. or by writing to Wolfson Brands (U.K.), Ltd., ATTN: WOLFSON LEGAL, 12 Payne Street, Glasgow, G4 0LF, United Kingdom by certified or registered mail. Wolfson will contact you by letter at the billing address you provided to us or at the email address you provided to us. You agree to negotiate with Wolfson or its designated representative in good faith about your problem or dispute. If for some reason the dispute is not resolved within 60 days after receipt of the written description of the dispute, we agree to the dispute resolution provisions below. Notwithstanding the foregoing or any other term of this arbitration agreement, we will have the right to seek injunctive or other equitable relief in state or federal court located in New York, New York to enforce these Terms or prevent an infringement of a third party’s rights or our intellectual property rights, as stated in subsection “b” above. You hereby expressly consent to, and forever waive any challenge to, the exclusive personal jurisdiction and venue of said courts in such actions.
You and Wolfson agree to commence any arbitration proceeding within 1 year after the Claim arises (the 1-year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after 1 year shall be forever barred.
If the amount in controversy is $500 or less, then the arbitration may be conducted by telephone or by written submissions. Otherwise, the arbitration shall be conducted in New York, New York unless Wolfson otherwise agrees to arbitrate in another forum requested by you.
Organization, Rules, and the Arbitrator
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules. We will pay the fees charged by the arbitrator for claims totaling less than $750, unless the arbitrator determines the claims are frivolous, in which case, we reserve the right to seek reimbursement from you for any arbitrator fees paid. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.
Governing Law and Award
The arbitrator shall follow the substantive law of the State of New York without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the FAA. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This provision survives termination of your account or relationship with Wolfson, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the 1-year limitation period set forth above. This Section 18 is the entire arbitration agreement between you and Wolfson and shall not be modified except in writing by Wolfson.
Wolfson reserves the right to amend this arbitration provision at any time. Your continued use of the Website, purchase of any product on or through the Website, or use or attempted use of Wolfson’s products, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Wolfson will provide you notice and an opportunity to opt-out. Your continued use of the Website, purchase or use of any products on or through the Website, or use or attempted use of the Wolfson’s products is affirmation of your consent to such material changes.
Batch Arbitrations. To the extent permitted by applicable law, to increase efficiency of resolution, in the event 100 or more similar arbitration demands against Wolfson presented by or with the assistance or involvement of the same law firm(s) or organization(s), are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period: (A) the parties shall cooperate to group the arbitration demands into randomized batches of no more than 100 demands per batch (plus, to the extent there are fewer than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); (B) claimants’ counsel shall organize and present the batched demands to the arbitration provider in a format as directed by the arbitration provider; (C) the arbitration provider shall provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch; and (D) the arbitration provider shall send one set of disclosures per batch and will set up one Arbitration Management Conference per batch. You agree to cooperate in good faith with Wolfson and the arbitration provider to implement such a batch approach to resolution and fees. Disagreements over the applicability of this batch arbitration process will be settled in a single, consolidated arbitration proceeding that includes all affected parties and is resolved by a single arbitrator subject to the requirements of this section. Notwithstanding any provision in the Agreement to the contrary, batch arbitrations shall take place in New York, New York or, if the parties prefer, by video conference. The parties may also agree to conducting arbitration based on written submissions alone.
California Customers. Notwithstanding anything to the contrary herein, to the extent that the arbitrator or a court of competent jurisdiction determines, in contravention of this agreement to arbitrate, that California law governs the relationship between Wolfson and customers residing in California, then the following rules shall apply: (a) a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) must be arbitrated on a class basis, (b) in the event that the foregoing clause is deemed invalid or unenforceable, a representative action for public injunctive relief pursuant to California’s Consumer Legal Remedies Act (Cal. Civ. Code § 1750 et seq.), Unfair Competition Law (Cal. Bus. & Prof. Code § 17200 et seq.) and/or False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) may be brought in the state or federal courts located in New York on a class basis, and (c) any claims other than for public injunctive relief must be arbitrated on an individual, non-class basis as otherwise set forth in this Section 18.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION. YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU PURCHASE, USE, OR ATTEMPT TO USE A PRODUCT PURCHASED ON OR THROUGH THE WEBSITE (WHICHEVER COMES FIRST) BY WRITING TO US VIA CERTIFIED OR REGISTERED MAIL AT WOLFSON BRANDS (U.K.), LTD., ATTN: WOLFSON LEGAL, 12 PAYNE STREET, GLASGOW, G4 0LF, UNITED KINGDOM, WITH THE NOTATION “ARBITRATION OPT-OUT” ON THE OUTSIDE OF THE ENVELOPE OR PACKAGE, OR BY SENDING AN EMAIL TO firstname.lastname@example.org. WITH THE SUBJECT LINE “ARBITRATION OPT-OUT”. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PUCRHASED, USED, OR ATTEMPTED TO USE THE PRODUCT. IF MORE THAN THIRTY (30) DAYS HAVE PASSED, YOU ARE NOT ELIGIBLE TO OPT OUT OF THIS PROVISION AND YOU MUST PURSUE YOUR CLAIM THROUGH INDIVIDUAL BINDING ARBITRATION AS SET FORTH IN THIS AGREEMENT.
Notwithstanding anything to the contrary herein, to the extent that the arbitrator or a court of competent jurisdiction determines, in contravention of this agreement to arbitrate, that the claims of individuals located outside of the United States are not subject to the agreement to arbitrate set forth in this Section 18 and/or that New York law does not apply, then the following rules shall apply:
If you reside in Canada you: (1) submit to the personal and exclusive jurisdiction and venue of the courts located within the province of Ontario; and (2) agree that any Claim will be governed by and construed subject to the laws of Ontario and the laws of Canada applicable therein, without giving effect to its conflict of law principles.
If you reside in the European Union (“EU”) or in the United Kingdom (“U.K.”), you may submit a Claim against us in your own country or in the U.K., but agree that any Claim will be governed by and construed subject to the laws of the U.K.
If you reside in Australia you: (1) submit to the personal and exclusive jurisdiction and venue of the courts located within the State of Victoria; and (2) agree that any Claim will be governed by and construed subject to the laws of the State of Victoria, without giving effect to its conflict of law principles.
If you reside outside of the US, the EU, the U.K., Australia, and Canada you: (1) submit to the personal and exclusive jurisdiction and venue of the courts located within Scotland; and (2) agree that any Claim will be governed by and construed subject to the laws of Scotland, without giving effect to its conflict of law principles.
19.WOLFSON’S ADDITIONAL REMEDIES
In order to prevent or limit irreparable injury to Wolfson, in the event of any breach or threatened breach by you of the provisions of the Agreement or any infringement or threatened infringement by you of the intellectual property of Wolfson or a third party, Wolfson shall be entitled to seek an injunction or other equitable relief restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting Wolfson from pursuing any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you.
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Wolfson and its affiliates, and their respective directors, shareholders, officers, employees, licensors, independent contractors, subcontractors, suppliers, parent companies, subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to attorneys’ fees and costs of any litigation, other dispute resolution, or regulatory investigation, arising out of, resulting from, or in any way connected with or related to (1) your use or misuse of the Website, (2) information you submit or transmit through the Website, or (3) your breach of these Terms, the documents they incorporate by reference, or the Agreement, or your violation of any law or the rights of a third party.
21.NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT AGENT
If you believe that materials or content available on any part of the Website infringes any copyright you own, you or your agent may send Wolfson a notice requesting that Wolfson remove the materials or content from the Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send Wolfson a counter-notice. Notices and counter-notices should be sent by e-mail to email@example.com. with the subject line “DMCA Notice” or “DMCA Counter-Notice”, as applicable, or in writing via registered or certified mail to Wolfson Brands (U.K.), Ltd., ATTN: WOLFSON LEGAL, 12 Payne Street, Glasgow, G4 0LF, United Kingdom.
No failure or delay on the part of Wolfson in exercising any right, power or remedy under the Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power or remedy under the Agreement. A waiver of any right or obligation under the Agreement shall only be effective if in writing and signed by Wolfson.
23.GOVERNING LAW AND VENUE
24.ACTS OUT OF WOLFSON’S CONTROL - FORCE MAJEURE
Wolfson shall not be responsible to you for any delay, damage, or failure caused by or occasioned by a Force Majeure Event. As used in this Agreement, “Force Majeure Event” shall mean: any act of God, act of nature or the elements, pandemics or epidemics, terrorism, insurrection, revolution or civil strife, piracy, civil war or hostile action, labor strikes, acts of public enemies, federal or state laws, rules and regulations of any governmental authorities having jurisdiction over the premises, inability to procure material, equipment, or necessary labor in the open market, acute and unusual labor, material, or equipment shortages, or any other causes beyond the control of Wolfson. Delays due to any of the above causes shall not be deemed to be a breach of or failure to perform under this Agreement. Wolfson shall not be required against its will to adjust any labor or other similar dispute except in accordance with applicable law.
Wolfson may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned without Wolfson’s express written consent.
All information communicated on the Website is considered an electronic communication. When you communicate with Wolfson through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication. You further acknowledge and agree that by clicking on a button labeled “COMPLETE ORDER,” “PAY NOW”, “ORDER NOW”, “SUBMIT”, “BUY NOW”, “PURCHASE”, “I ACCEPT”, “I AGREE”, or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
You also further agree that we may communicate with you on the telephone number that you provided, including through the use of autodialing and pre-recorded voice technology, about your order as well as about offers and deals. Your consent to receive autodialed or pre-recorded calls or messages about offers and deals is not a condition of purchase.
27.YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES
You hereby further represent and warrant: (1) that you are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, whichever is greater; (2) that you have read this Agreement and thoroughly understand the terms contained in this Agreement; and (3) that any products you purchase from the Website will be used for your personal, non-commercial use, and that you will not re-sell, re-distribute, or export any product that you order from the Website. You further represent that Wolfson has the right to rely upon all information provided to Wolfson by you, and Wolfson may contact you by email, telephone or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) customer satisfaction surveys, and (iii) inquiries about any orders you placed, or considered placing, on or through the Website.
In the event that any provision of these Terms 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, such determination shall not affect the validity and enforceability of any other remaining provisions.
29.TERM AND TERMINATION
These Terms will take effect (or shall re-take effect) at the time you click a checkbox accepting the terms, click “I ACCEPT” or similar buttons, submit information through this Website, respond to a request for information, complete a purchase, select a method of payment, enter in payment method information, and/or begin installing, accessing, or using the Website, whichever is earliest. Wolfson reserves the right at any time and without notice to deny you access to the Website or to any portion thereof and to terminate your rights under these Terms, in its sole and absolute discretion. Your rights under these Terms will terminate automatically if you fail to comply with these Terms, subject to the survival rights of certain provisions identified below. Termination will be effective without notice. The provisions concerning permission to use postings, proprietary and intellectual property rights, submissions, indemnity, disclaimers of warranty and liability, admissibility of these Terms, arbitration and class action waiver, all representations and warranties made by you, and governing law will survive the termination of these Terms for any reason.
The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
These Terms 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).
Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.
31. CHANGES TO TERMS
You can review the most current version of the Terms at any time at https://au.performer8.com/pages/terms-and-conditions.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms 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 constitutes acceptance of those changes.
Questions about the Terms should be sent to us at firstname.lastname@example.org. or via post to the Company Address listed below in Section 33:
33. COMPANY ADDRESS
WOLFSON BRANDS (UK) LIMITED
12 Payne Street
Company Registration Number : SC638930