Performance Designed Products LLC - End User License Agreement
IMPORTANT: This End User License Agreement (“EULA” or “Agreement”) limits the liability of Performance Designed Products LLC (“PDP”) in Section 12 below, and contains a binding arbitration provision in Section 15 below. Please be sure to read these sections carefully before accessing or using the Software or Services (as defined below).
The English-language EULA is PDP’s official statement of its end user license agreement terms and conditions for the Software and Services. In case of any inconsistency between the English-language EULA and its translation into another language, the English-language EULA shall prevail.
1. LEGALLY BINDING TERMS: The following terms and conditions constitute a binding legal agreement between you, as an individual or as an authorized representative of any entity (in either case, “You” or “Your”) and PDP, setting forth the terms and conditions under which the PDP software (the “Software”) and any associated services, products, content, websites provided (together with the Software, the “Services”) will be licensed to You by PDP. The terms “PDP” “We”, “Us” or “Our” as used herein means Performance Designed Products LLC. If You permit, authorize, provide access to or otherwise allow any other individual to use the Services through Your personal computer or game console, or represent such individuals in any legal capacity, such individuals shall be deemed to be included in the terms “You” or “Your” as used in this Agreement. PDP may amend or replace these terms and conditions at any time, without prior notice to You except as may be required under applicable law. From time to time, You should review the then-current version of this Agreement.
2. SERVICE USAGE & ACCESSIBILITY: The Services are licensed, not sold, to You by PDP for use strictly in accordance with the terms of this Agreement. In consideration of Your access to and use of the Services, (i) You, Your guardian, or Your authorized representative are of legal age to form a binding contract; (ii) Your use of the Services will be solely for Your personal and lawful use; and (iii) You will comply with all terms and conditions of this Agreement in using the Services. You are solely responsible for keeping Your personal computer and game console secure. Anyone with knowledge of or access to Your personal computer or game console may use it to access and use the Services. You shall be solely liable for any claims, damages, losses, costs, expenses or other liabilities resulting from or caused by any failure to keep Your personal computer or game console secure (whether such failure occurs with or without Your knowledge or consent).
3. LIMITED LICENSE: Subject to Your ongoing compliance with the terms and conditions of this Agreement, PDP hereby grants You a revocable, non-transferable, non-exclusive, non-sublicensable personal license to install and use the Services with Your game console or on Your personal computer that You own or control and to access and use the Services on such devices.
4. SERVICES: The Software allows You to, as applicable, configure, customize, program, diagnose, and/or calibrate your PDP product. Please review Your PDP product user guide for a complete description of all features and benefits of the Services.
5. USE RESTRICTIONS: You represent and warrant that You will not violate any of the terms and conditions set forth in this Agreement and further that:
A. You will not, and will not allow, permit or enable any third party to (i) attempt to decompile, reverse engineer, disassemble or otherwise to derive source code from the Services; (ii) make any modification, adaptation, improvement, enhancement or create derivative works from the Services; (iii) use, copy, modify, alter or transfer the Services contrary to this Agreement or applicable laws and regulations; (iv) rent, lease, sell, redistribute or sublicense the Services or any aspect thereof; (v) remove, obscure, or alter any copyright notices, trademarks, or other proprietary rights notices of PDP or any party; or (vi) use any part of the Services while operating heavy machinery or engaging in any activity where insufficient attention on your part could result in personal injury, death or property damage; and
B. You will not misuse the Services and acknowledge and understand that “misuse” of the Services includes, but is not limited to using the Services in any manner that (i) interferes with other’s use of the Services or with PDP’s ability to provide the Services; (ii) infringes the copyright, trademark or any intellectual property right, discloses a trade secret or confidential information in violation of a confidentiality or non-disclosure agreement or obligation; (iii) is fraudulent, unlawful or contains defamatory or illegal information, materials or descriptions; (iv) slanders, defames, harasses, stalks, threatens or otherwise violates the legal rights of others or is invasive of another’s privacy rights; (v) promotes or provides instructional information about illegal activities; (vi) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; (vii) uses the Services on a device without permission, regardless of whether it is a stolen, lost or unauthorized device; (viii) tampers with or makes an unauthorized connection to a game console, computer or other device not otherwise owned by You or which you have a right to access and use; (ix) involves reselling any part of the Services to any other individual or entity; (x) disseminates viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of any game device or computer software or hardware; or (xi) violates any applicable laws, statutes or regulations.
C. In addition to the foregoing, You agree not to: (i) access any nonpublic areas of our Services; (ii) send viruses, worms, or malware of any kind or for any purpose; (iii)attempt to probe, scan, compromise or test the vulnerability of the Services or any related service, system or network or breach any security or authentication.
6. SERVICE LIMITATIONS: PDP does not guarantee or warrant the quality, clarity, accuracy or correctness of the results of the Services. You accept and acknowledge that the results You obtain or content You access on the Services may not be accurate, timely, reliable or of good quality. In no event shall PDP have any liability to You or any third party as a result or in connection with any attempt to recover or wipe data on Your game console or Your computer.
7. SECURITY: The Services are intended for Your personal use only. If You believe Your game console or computer has been stolen, You should seek assistance from Your local law enforcement. You further understand and acknowledge that the Software may not function properly, may contain errors or bugs, and is susceptible to breach, corruption, damage or failure. If the Software malfunctions, fails or is disabled or uninstalled from Your game console or computer, with or without Your knowledge and/or consent, the Services and any functions will not function. You are solely responsible for any resulting claims, liabilities, losses or damages arising out of or from the unauthorized disclosure, transfer or use of any personal content, data or materials stored on Your game console or personal computer for any reason, even if occurring as a result of a failure in the Services or from disabling or uninstalling the Software, with or without Your knowledge and/or consent.
8. PAYMENT: You agree to pay all fees charged, if any, to Your account for the Services, if any, regardless of whether You have electronically downloaded, installed or used the Software. PDP shall not be liable for any liabilities, losses or damages resulting from any failure in the functionality of the Services caused by or resulting from Your failure to pay any amounts when due. PDP reserves the right to charge the applicable fees for the Services or the related service package at any time and will take reasonable efforts to provide You with prior notice of any such change.
9. PROPRIETY RIGHTS IN THE SERVICES AND SOFTWARE: You acknowledge and agree that (i) the Services and all copyrights, patents, trademarks, trade secrets and other intellectual property rights associated therewith are, and shall remain, the sole property of PDP and its licensors, as applicable; (ii) the source and object code of the Software and the format, directories, queries, algorithms and structure of the Software are and shall remain the proprietary information of PDP and its licensors, as applicable; (iii) You are not granted any intellectual property rights by implication, estoppel or other legal theory in the Services or any software provided through or in conjunction with the Services; and (iv) all rights not expressly granted in this Agreement are hereby reserved and retained by PDP.
10. DISCLAIMER OF WARRANTIES: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR DOWNLOADING AND 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 AND EACH OF ITS PROVIDERS AND LICENSORS 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, QUALTY AND NONINFRINGEMENT.
PDP and each of its providers 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 game console or computer system or any other loss or damages of any kind resulting from the download and use of the Software 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 this Agreement. You acknowledge and agree that PDP might not be able to offer the Software and Services at all in the absence of the foregoing disclaimers and limitations.
11. VIOLATION OF THIS AGREEMENT: PDP reserves the right to investigate, provide to third parties, (temporarily) block and/or remove from its servers and systems, without warning, any transfers, files or accounts or to block anyone from accessing any part of the Services, if PDP ascertains, in its sole discretion or after receiving substantiated and valid complaints, that You violate this Agreement or act in violation of any applicable law, statute or regulation.\
12. 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 SERVICES, ANY THIRD PARTY CONTENT, SOFTWARE OR FUNCTIONS USED IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PDP, ITS PARENTS, AFFILIATES AND SUBSIDIARIES OR ANY OR ALL LICENSORS AND PROVIDERS 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 AND EACH OF THE LICENSORS AND PROVIDERS TO YOU, ARISING UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO PDP IN CONNECTION WITH THE SERVICE PACKAGE 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.
You acknowledge and agree that PDP shall not be responsible for any failure in the functionality of the Services caused by or resulting from installing, using or uninstalling the Software or Services from Your device, whether uninstalled or disabled by You or a third party, with or without Your consent.
13. INDEMNIFICATION: You agree to indemnify, reimburse, defend and hold harmless PDP and its parents, affiliates, subsidiaries, licensors and providers, 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 this Agreement; (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 Agreement. 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.
14. CALIFORNIA LAW, FORUM AND VENUE: All disputes, rights and obligations arising out of or in connection with this Agreement or the Services 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.
15. BINDING ARBITRATION: PLEASE READ THIS ARBITRATION PROVISION CAREFULLY. IT AFFECTS YOUR RIGHTS.
A. Most of Your concerns about this Agreement or 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.
B. 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 this Agreement 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 Agreement was entered into by You and Us or that arises after this Arbitration Provision or Agreement 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.
C. 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.
D. 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.
16. NO RIGHT OF SURVIVORSHIP: You agree that Your account is non-transferable and that any rights to your account terminate upon your death.
17. 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.
Attn: Corporate & Legal Affairs
9179 Aero Drive
San Diego, CA 92123
18. MISCELLANEOUS: This Agreement, except as set forth in this Section, comprises the entire agreement between You and PDP relating to Services and supersedes all prior or contemporaneous understandings regarding such subject matter. The failure of PDP to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found to be invalid or contrary to law, then such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement shall be valid and enforceable.
By accessing and using the Services, You are confirming that you have read, understand and agree to be bound by this Agreement, including its limitation of liability, indemnification and arbitration provisions.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE OR ACCESS THE SERVICES.
Performance Designed Products, PDP and their respective logos are trademarks and/or registered trademarks of Performance Designed Products LLC. All other trademarks contained herein are the property of their respective owners.
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