PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS WEBSITE. ACCESS TO AND USE OF THIS SITE IS SUBJECT TO THESE TERMS AND CONDITIONS AND OTHER APPLICABLE LAW. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, PLEASE DO NOT USE THIS SITE.
Performance Kitchen (“the Company”, “we” or “us”) provides this website (the “website” or “site”) for its customers and other permitted users. We’ve worked hard to give you the essential information here and elsewhere on our site to get you comfortable with our site and to make it useful to you. These Terms and Conditions of Use (the “Terms and Conditions”) help enable us to provide you with the products and services, information, other content and features available through our site.
- Scope of Access to Website and Related Rights: Subject to these Terms and Conditions, the Company grants you a limited, revocable right to access and use the site solely for your personal use. You agree not to modify, adapt, translate, or reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of this website. Further, except as expressly permitted herein, you may not reproduce all or any portion of the site or any text, data, information, graphics, photographs and other materials that the Company makes available on the site. This website and its contents are the intellectual property of and are owned by the Company and/or its licensors. The Company reserves the right to suspend or terminate use of this website or its services by you or other users in its sole discretion.
- User Account:A user account is not required to browse the site or to place your order, but is necessary if you wish to save your shipping preferences, address or other information in our system. If you establish a user account it will be accessible upon input of an authorized e-mail address and a designated password. You are responsible for maintaining the security of any user passwords and other account details issued to you for use with the site, and you are also responsible for the integrity and security of the operating environment from which you access the site. For so long as you use the account, you agree to provide true, accurate, current, and complete information. If you need to make changes to your account information, please contact the Company using the below contact information and we will make the changes for you. You agree to accept responsibility for all activities that occur under your user account. You agree to notify the Company if your password is lost, stolen, if you are aware of any unauthorized use of your user account, or if you know of any other breach of security in relation to the website.
- Children’s Privacy and Site Age Limitations:This website is intended for use by persons aged 18 or older, and by your use of this site you affirm that you are at least 18 years of age, or if you are under the age of 18 (a “Minor”), that you are using this website with the consent of your parents or legal guardian. If you are a parent or legal guardian of a Minor, you agree to bind the Minor to these Terms and Conditions and to fully indemnify and hold the Company harmless if the Minor breaches any of these Terms and Conditions. You may not use this site if you are under the age of 13. The Company will not knowingly allow registration of an account for any person that the Company believes to be younger than 13. We also do not knowingly collect any personally identifiable information from any persons under the age of 13 and if we discover that we have been provided any such information, we will delete this information from our records.
- Pricing or Other Information Errors:Although the Company strives at all times to maintain the accuracy of information maintained on this site, including pricing information and product details, occasionally the information on the site may contain typographical errors, inaccuracies, or omissions in relation to product descriptions, pricing and availability. In addition, our packaging may change, so the product you receive may look different from the picture displayed on our site. The Company reserves the right to correct any errors, inaccuracies or omissions and to change or update information at any time without prior notice (including after you have submitted an order). In the event that any Company product that is available through this site is mistakenly listed at an incorrect price or with other incorrect information, the Company reserves the right to either refuse or cancel the order or to charge you the correct price.
- Orders, Payment, Shipping and Inability to Fulfill Orders:
5.1 Generally. If you select the appropriate option at the time you place your order, the Company will send an order acknowledgment to your designated e-mail address once you have placed an order with us. The Company reserves the right to refuse or cancel any orders (or portions thereof) for any reason (including due to product unavailability or pricing errors as noted above in Section 4), and whether or not the order has been confirmed. Without limitation of the foregoing, the Company is not responsible for any inability to fulfill orders. If your credit card has already been charged for the purchase and your order is cancelled by the Company, we will issue a credit to your credit card account in the amount charged. You agree that, if the Company cancels all or a part of your order, your sole and exclusive remedy is either that (a) the Company will issue a credit to your credit card account in the amount charged for the cancelled portion (if your credit card has already been charged for the order) or (b) the Company will not charge your credit card for the cancelled portion of the order.
5.2 Payment. You agree to pay the price applicable for each product you order and you agree to pay all applicable fees, including but not limited to delivery fees and taxes related to your purchases and your use of website. The Company may suspend or terminate your account and/or access to the website if your payment is late and/or your credit card cannot be processed. By providing your credit card information, you expressly authorize the Company and/or our third party payment processor to charge the applicable fees and charges to that credit card. Except as set forth herein, all payments are non-refundable.
6.1 Generally. Products will be shipped in accordance with the shipping method you select when placing the order. All orders will be processed and fulfilled by the Company’s third party fulfillment partner. You acknowledge that any delivery dates the Company may provide are non-binding estimates only and that you have no claim against the Company for delays or early deliveries. The Company reserves the right to make deliveries in installments. Products may currently only be shipped to addresses in the United States.
6.2 Packaging. Each order is carefully packaged; however, like any other perishable food item; the packages have a shelf life and it is your responsibility to use the products in a timely manner. Furthermore, you should inspect your package to ensure the contents arrive closed and clean. If you are not home when a delivery arrives, the delivery person may leave the package for you at your door.
The Company is not responsible for:
- Items delivered to incorrect addresses supplied by you or the recipient of the product.
- Delivery issues arising from the recipient not being present at the time of delivery at the address supplied by you or recipient.
- Decreased product quality due to an incorrect delivery address supplied by you or the recipient, or a re-route requested by you or the recipient.
- Product quality problems caused by improper handling by the recipient, including product quality problems resulting from perishable items that are left unattended or unopened by the recipient.
6.3 Returns and Damaged Goods. Due to the perishable nature of most of the Company’s products, the Company is unable to accept returns under any circumstances. All claims for damaged, spoiled, or missing shipments must be made by within thirty (30) days of delivery or scheduled delivery time. [Claims may be made by emailing email@example.com or calling 1-(866)-222-9464.] [For claims made by the thirtieth day of the month following your scheduled delivery, we will replace your damaged, spoiled or missing shipment with a shipment in a future month. We are unable to accommodate claims for damaged, spoiled or missing shipments received after the thirtieth day of the month following your scheduled delivery.]
- Text Messaging:Our site may offer you the opportunity to receive text messages, including to participate in promotional programs that use text messaging. If you choose to participate in such promotions, you should be aware that your carrier may charge you standard text messaging rates for each message sent or received. You represent to us that you are the owner or authorized user of the wireless device used to receive or send any text messages related to Company programs, products or services.
- Termination of Website Use:The Company may terminate your access to this website at any time. In addition, your access rights to use this website may also be terminated if you fail to comply with these Terms and Conditions. You agree that the Company will not be liable to you or any third party for any termination of your use of this website. If your use of our site is terminated for any reason, the provisions relating to Copyrights, Trademark, Warranty Disclaimers, Limitations of Liability, Indemnification and Miscellaneous, shall survive any such termination.
- Website Warranty Disclaimers:THIS SITE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THIS SITE OR THE USE THEREOF, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEITHER THE COMPANY NOR ITS LICENSORS OR HOSTING SERVICES PROVIDERS MAKES ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE INFORMATION ACCESSIBLE THROUGH THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. SOME STATES DO NOT PERMIT CERTAIN LIMITATIONS OR EXCLUSIONS ON WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- Limitations of Liability:NEITHER THE COMPANY NOR ITS LICENSORS OR HOSTING SERVICES PROVIDERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR ANY LOST PROFITS, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE COMPANY’S PRODUCTS, SERVICES OR THIS SITE, THE PERFORMANCE OR USE OF THIS WEBSITE, OR ANY INFORMATION MADE AVAILABLE THROUGH THIS SITE, EVEN IF THE COMPANY (OR ITS LICENSORS OR HOSTING SERVICES PROVIDERS) HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW CERTAIN LIMITATIONS OF EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
12.1 Ownership. The entire contents included in this site, including but not limited to text, graphics or code is copyrighted under the United States and other copyright laws, and is the property of the Company (or its licensors), with ALL RIGHTS RESERVED. You agree not to change or delete any proprietary notices from materials downloaded or accessed from this site.
12.2 Copyright Infringement. Pursuant to Title 17 of the United States Code, Section 512, the Company has implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by material displayed on this website, please provide written notice to our agent for notice of claims of infringement:
To be sure the matter is handled immediately, your written notice must:
- Contain your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
- Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
- Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.
Termination of Repeat Infringers
The Company reserves the right, in our sole discretion, to terminate the account or access of any user of this website who is the subject of repeated DMCA or other infringement notifications.
- Trademarks:All trademarks, service marks and trade names and logos of the Company used in this site are trademarks or registered trademarks of the Company. Other marks used on this site that have been posted by the Company are the property of their respective owners and are used on this website under permission.
- Applicability of Terms and Changes:These Terms and Conditions are applicable to you upon your accessing the site and/or completing the registration or ordering process. These Terms and Conditions, or any part of them, may be modified by the Company without notice at any time, for any reason; provided that if we decide to modify these Terms and Conditions, we will note at the bottom of these Terms and Conditions the date of the last update, which should alert you to changes in these Terms and Conditions since your prior visit to this website.
- Indemnification:You agree to indemnify, defend, and hold harmless the Company, its officers, directors, employees, agents, licensors and suppliers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from (i) any violation of these Terms and Conditions, (ii) any activity related to your account (including negligent or wrongful conduct) by you or any other person accessing the site using your user account, (iii) any content or other materials provided or posted by you, or (iv) the violation by you of the rights (including intellectual property rights) of any third party resulting from your use of the site.
- Third-Party Links:In an attempt to provide increased value to our customers and other site visitors, the Company may provide links to sites operated by third parties. If you use these links, you will leave this website. The Company is not obligated to review any third-party websites that you link to from this website, does not control any of the third-party websites, and is not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, unless expressly stated on this website, the Company does not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there, or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from this website, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites. Nonetheless, the Company seeks to protect the integrity of its web site and the links placed upon it and therefore welcomes any feedback on not only its own site, but for sites it links to as well (including if a specific link does not work).
- Feedback: Any submissions that you make to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and the Company is free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
Notice and Address:The Company may deliver notices to you concerning your activities on this site by means of e-mail, a general notice on the site, or by other reliable method to the address you have provided to the Company.
The Company’s mailing address is as follows:
PMB 4600 250 H St
- Dispute Resolution and Arbitration; Class Action Waiver:
Please Read This Provision Carefully. It Affects Your Legal Rights.
This Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between you and the Company. Effectively, then, “dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
This Provision provides that all disputes between you and us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because we believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means you would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). BOTH YOU AND THE COMPANY AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve the dispute which is first done by emailing us at firstname.lastname@example.org the following information: (1)Your name, (2) Your address, (3) A written description of your claim, and (4) A description of the specific relief you seek. If we do not resolve the dispute within 45 days after receiving your notification, then you may pursue your dispute in arbitration. You may pursue your dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or we may choose to pursue a dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing us at email@example.com the following information: (1) Your name; (2) Your address; (3) A clear statement that you do not wish to resolve disputes with us through arbitration. Either way, we will not take any decision you make personally. In fact, we promise that your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with us. But, we do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your dispute in arbitration or small claims court.
If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or we may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Applications and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or we may initiate arbitration in either Illinois or the federal judicial district that includes your billing address. In the event that you select the latter, we may transfer the arbitration to Illinois so long as we agree to pay any additional fees or costs which the arbitrator determines you incur as a result of the transfer.
Payment of Arbitration Fees and Costs – So long as you place a request in writing prior to commencement of the arbitration, we will pay all arbitration fees and associated costs and expenses. But, you will still be responsible for all additional fees and costs that you incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if you provide notice and negotiate in good faith with us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and we specifically agree to do so following initiation of the arbitration. If you choose to pursue your dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of the Applications can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
You understand and agree that by accepting this Provision in these Terms, you and we are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and we might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court (e.g.,, the rights to both appeal and certain types of discovery) may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.
- Miscellaneous:Your use of this site shall be governed in all respects by the laws of the state of Illinois, without regard to such state’s choice of law provisions, and not by the U.N. Convention on Contracts for the International Sale of Goods. Any cause of action or claim you may have with respect to the site must be commenced within one (1) year after the claim or cause of action arises. The Company’s failure to insist upon or enforce strict performance of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these Terms and Conditions. We control and operate this website from the United States of America and the entirety of this website may not be appropriate or available for use in other locations. If you use this website outside the United States of America, you are solely responsible for following applicable local laws. The Company may assign its rights and duties under these Terms and Conditions to any party at any time without notice to you.
- California Consumer Notice: Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This website and Service are provided by Performance Kitchen, PMB 4600 250 H St Blaine, Washington 98230 USA. If you have a question or complaint regarding the website products purchased from the website, please contact Customer Service at firstname.lastname@example.org.