BigBadDieselPerformance.com SALES TERMS
These BigBadDieselPerformance.com Sales Terms were last updated August 1, 2018.
Big Bad Diesel Performance LLC may change Store Terms at any time, so you should review them each time before placing an order from the Store. Each time you place an order with the Store, the Store Terms then in place will apply.
No Warranties and Limited Liability; Arbitration: These Store Terms provide you with certain legal rights, but you may have other, additional legal rights, which vary from jurisdiction to jurisdiction. Please note that Big Bad Diesel Performance LLC doesn't provide warranties for the Store, and these Store Terms limits our liability to you. Please see Sections 16 and 17 for details. Some jurisdictions do not permit the exclusion of implied warranties or the exclusion or limitation of certain damages or other rights, so those provisions of these Store Terms may not apply to you. These Store Terms require the use of binding arbitration to resolve disputes rather than jury trials or class actions. Please see Section 18 for details, including instructions to follow in order to opt out of binding arbitration and the class action waiver.
TERMS RELATING TO YOUR USE OF THE STORE
1. No Unlawful or Prohibited Use.
As a condition of your use of the Store, you warrant to Big Bad Diesel Performance LLC that you will not use the Store for any purpose that is unlawful or prohibited by the Store Terms. You will not: (a) use the Store in any manner that could damage, disable, overburden, or impair any Big Bad Diesel Performance LLC server, or the network(s) connected to any Big Bad Diesel Performance LLC server, or interfere with any other Store user’s use of the Store; (b) attempt to gain unauthorized access to the Store, other accounts, computer systems or networks connected to any Big Bad Diesel Performance LLC server or to the Store, through hacking, password mining or any other means; (c) obtain or attempt to obtain any materials or information through any means not intentionally made available through the Store; (d) use the Store in a way that infringes rights of third parties, including willfully harming a person or entity, including Big Bad Diesel Performance LLC; and (e) commercially distribute, offer for sale or sell any Products obtained from the Store.
Any suggestions, information or feedback provided by you to Big Bad Diesel Performance LLC regarding the Store or Products (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Store or Products or any ratings or reviews of the Store or Products) (“Feedback”) is voluntary, and you hereby grant to Big Bad Diesel Performance LLC a world-wide, royalty free, irrevocable, transferrable, perpetual license to use (and authorize others to use) any Feedback without restriction.
3. Links to Third Party Websites
The Store may include links to third party websites that let you leave the Store. Big Bad Diesel Performance LLC is not responsible for the contents of any linked site or any link contained in a linked site. Big Bad Diesel Performance LLC provides links to you only as a convenience, and the inclusion of any link does not imply endorsement by Big Bad Diesel Performance LLC of the linked site. Your use of the third-party website may be subject to that third party’s terms and conditions.
TERMS RELATING TO THE PURCHASE OF PRODUCTS
5. Consumers Only
The Store sells and ships Products to end-user customers only. Big Bad Diesel Performance LLC reserves the right to refuse or cancel your order if Big Bad Diesel Performance LLC suspects you are purchasing products for resale.
6. Additional Product Terms
The purchase and use of the Products are subject to the Return/Refund Policy.
7. Prices & Payment
7.1 Big Bad Diesel Performance LLC reserves the right to change prices for Products displayed on the Store at any time. All prices are shown in U.S. dollars. Unless stated otherwise, prices shown in the Store exclude taxes or charges (“Taxes”) that may apply to your purchase. Prices shown in the Store may exclude delivery costs. Taxes and delivery costs (as applicable) will be added to the amount of your purchase and shown on the check-out page. You are solely responsible for paying such Taxes and costs.
7.2 By providing Big Bad Diesel Performance LLC with a credit card or other payment method that Big Bad Diesel Performance LLC accepts, you: (a) represent that you are authorized to use the payment method that you provided, and that any payment information you provide is true and accurate; and (b) authorize Big Bad Diesel Performance LLC (or its third-party payment processor) to charge your payment method for any Products purchased using your payment method. Third-party provided payment methods, such as PayPal, may be subject to that third party’s terms and conditions. Your payment method will be charged when the Product has shipped. If you cancel your order before the Products are billed, any authorizations in place on your payment method account may take several days to expire. If the payment method you provide cannot be verified, is invalid or is otherwise not acceptable, your order may be suspended or cancelled. You must resolve any problem Big Bad Diesel Performance LLC encounters in order to proceed with your order.
8. Order Acceptance & Confirmation
Big Bad Diesel Performance LLC may, in its sole discretion, refuse or cancel any order and limit order quantity. Big Bad Diesel Performance LLC may also require additional qualifying information prior to accepting or processing any order. Once your order is received, Big Bad Diesel Performance LLC will provide you with an email order confirmation. The order confirmation does not operate at Big Bad Diesel Performance LLC’s acceptance of your order, nor does it constitute confirmation of Big Bad Diesel Performance LLC’s offer to sell; instead, the email confirmation is merely a confirmation that Big Bad Diesel Performance LLC received your order. Big Bad Diesel Performance LLC reserves the right at any time after receiving your order to accept or decline your order for any reason. If Big Bad Diesel Performance LLC cancels an order after you have already been billed, Big Bad Diesel Performance LLC will refund the billed amount.
9. U.S. Shipping Only
Products purchased at the Store will only be shipped to addresses within the United States and are subject to United States and foreign export control laws and regulations. Products must be purchased, sold, exported, re-exported, transferred, and used in compliance with these export laws and regulations.
10. Shipping & Delivery
Prices for the Products do not include shipping costs, though the Store may offer free shipping. Applicable delivery charges and methods are as described on the Store website from time to time. The estimated arrival or delivery date is not a guaranteed delivery date for your order. Refused deliveries will be returned to Big Bad Diesel Performance LLC.
11. Product Availability & Limitations
Big Bad Diesel Performance LLC reserves the right to change Product quantities available at any time, even after you place an order. There may be times when Big Bad Diesel Performance LLC confirms your order but subsequently learns that it is unable to supply the ordered Product; in the event Big Bad Diesel Performance LLC cannot supply a Product you ordered, Big Bad Diesel Performance LLC will cancel the order and refund your purchase price in full.
12. Return Policy
12.1 Please refer to the Return/Refund Policy for details regarding the return of Products.
13. Age Limitations
You acknowledge that you are authorized to place an order and to perform any other legal acts required of you under these Store Terms. Age limits may apply to your use of the Store, including purchases.
15. Termination of Use or Access
Big Bad Diesel Performance LLC may terminate your use of the Store at any time for any reason, including if you are in breach of any of the Store Terms. By using the Store, you will be responsible (in accordance with these Store Terms) for any orders you make or charges you incur prior to such termination. Big Bad Diesel Performance LLC may change, discontinue, or otherwise suspend the Store at any time, for any reason, and without prior notice to you.
16. Warranty Disclaimers
Some jurisdictions do not permit the exclusion or limitation of certain warranties, so the following provisions may not apply to you.
16.1 Warranty Disclaimers
THE STORE IS PROVIDED “AS IS” AND “AS AVAILABLE.” ALL PRODUCTS PURCHASED THROUGH THE STORE ARE PROVIDED ON AN “AS-IS” BASIS UNLESS OTHERWISE NOTED IN THE MANUFACTURER’S WARRANTY THAT IS INCLUDED WITH A PRODUCT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Big Bad Diesel Performance LLC AND ITS LICENSORS AND SERVICE PROVIDERS MAKE NO (AND SPECIFICALLY DISCLAIM ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION: (A) ANY WARRANTY THAT (I) THE STORE WILL BE UNINTERRUPTED, ERROR-FREE, FREE OF HARMFUL COMPONENTS, TIMELY, OR SECURE OR (II) ANY DATA, INFORMATION OR RESULTS OBTAINED THROUGH THE USE OF THE STORE WILL BE ACCURATE, TIMELY OR ERROR-FREE; (B) ANY IMPLIED WARRANTY OF ACCURACY, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT; AND (C) ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT, SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
YOUR USE OF THE STORE AND ANY DATA, INFORMATION OR RESULTS OBTAINED THROUGH THE STORE IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR, AND Big Bad Diesel Performance LLC DISCLAIMS, ANY AND ALL LOSS, LIABILITY, OR DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE STORE.
17. Limits on Liability
Some jurisdictions do not permit the exclusion or limitation of certain damages or other rights, so the following provisions may not apply to you.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL: (A) Big Bad Diesel Performance LLC (AND ITS AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS) BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, INFORMATION, OR ANY OTHER PECUNIARY LOSS), ARISING OUT OF, BASED ON, OR RESULTING FROM THE STORE TERMS, THE STORE OR PRODUCTS, OR THE USE OF, MISUSE OF, OR INABILITY TO USE THE STORE OR PRODUCTS, EVEN IF YOU OR Big Bad Diesel Performance LLC (AND Big Bad Diesel Performance LLC’S AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, AND LICENSORS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (INCLUDING DAMAGES INCURRED BY THIRD PARTIES); AND (B) Big Bad Diesel Performance LLC’S (AND ITS AFFILIATES’ AND ITS AND THEIR OFFICERS’, DIRECTORS’, EMPLOYEES’, AGENTS’, CONTRACTORS’, SUPPLIERS’, AND LICENSORS’) LIABILITY IN CONNECTION WITH THESE STORE TERMS, THE STORE OR THE PRODUCTS, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING GROSS NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID FOR THE PRODUCT BY YOU.
THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN SECTION 17 DO NOT APPLY TO LIABILITIES THAT ARISE FROM THE UNAUTHORIZED USE OF INTELLECTUAL PROPERTY OR THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS, SUCH AS IN THE EVENT OF STATUTORILY MANDATED LIABILITY (INCLUDING LIABILITY UNDER APPLICABLE PRODUCT LIABILITY LAW) OR IN THE EVENT OF PERSONAL INJURY, DEATH OR PROPERTY DAMAGE. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE STORE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
18. Disputes and Arbitration
18.1 Any dispute or claim relating in any way to these Store Terms or your access or use of the Store will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. 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 the provisions of these Store Terms as a court would.
18.2 To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Big Bad Diesel Performance LLC, Attention: Legal Department at email@example.com. Your notice to Big Bad Diesel Performance LLC must: (a) provide your name, mailing address, and email address; (b) describe the dispute; and (c) state the relief you are requesting. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. Big Bad Diesel Performance LLC will reimburse those fees for claims totaling less than $1,000 unless the arbitrator determines the claims are frivolous. Big Bad Diesel Performance LLC will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person at either a mutually agreed location or the state (or province) in which you purchased the Product.
18.3 WAIVER OF CLASS ACTIONS. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. Big Bad Diesel Performance LLC and you also both agree that you or Big Bad Diesel Performance LLC may bring suit in a state or federal court in Lexington or Richland County, South Carolina to enjoin infringement or other misuse of intellectual property rights.
18.4 OPTION TO OPT-OUT To opt out of the arbitration and class-action waiver terms in this Section 18, you must notify Big Bad Diesel Performance LLC in writing within 30 days of the date that you first accept these Store Terms (unless a longer period is required by applicable law). You must mail your written notification to Big Bad Diesel Performance LLC, Attention: Legal Department to the address in Section 18.2. Subject to Section 18.5, if you do not notify Big Bad Diesel Performance LLC as outlined in this Section 18.4, you agree to be bound by the arbitration and class-action waiver provisions herein, including such provisions in any Store Terms revised after the date of your first acceptance.
18.5 You may reject any change Big Bad Diesel Performance LLC makes to Section 18 (except address changes) by sending Big Bad Diesel Performance LLC written notice within 30 days of the change by mail to the address in Section 18.2. If you do, the most recent version of Section 18 before the change you rejected will apply. It is not necessary to send Big Bad Diesel Performance LLC a rejection of a future change to this Section 18 if you had properly opted out of the arbitration and class-action waiver provisions in this Section 18 within the first 30 days after you first accepted these Store Terms.
19. General Legal Terms and Contact Information
19.1 Governing Law
You agree that these Store Terms, and any claim, dispute, action, or issue arising out of or relating to these Store Terms or your use of the Products and Stores is governed by the Federal Arbitration Act, applicable federal law, and the laws of the State of Pennsylvania without reference to conflict of laws principles. Unless a dispute would be governed by an applicable arbitration clause, you agree to submit to the personal jurisdiction of the state and federal courts in or for Lexington or Richland County for the purpose of litigating all such claims or disputes. Notwithstanding the foregoing, Big Bad Diesel Performance LLC may seek injunctive or other equitable relief to protect its (or its licensors’ or service providers’) confidential information and intellectual property rights or to prevent loss of data or damage to its servers in any court of competent jurisdiction.
19.2 Force Majeure
Big Bad Diesel Performance LLC is not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a contract that is caused by an act or event beyond Big Bad Diesel Performance LLC’s reasonable control, including acts of God, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack, war, fire, explosion, storm, flood, earthquake, epidemic or other natural disaster, failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
Big Bad Diesel Performance LLC may need to communicate with you from time to time regarding these Store Terms or the Store. Big Bad Diesel Performance LLC may provide such notice to you via email to the email address you provided to Big Bad Diesel Performance LLC or on online Store. You may contact Big Bad Diesel Performance LLC at:
19.4 Entire Agreement
The Store Terms are the complete and entire understanding and agreement between Big Bad Diesel Performance LLC and you regarding the Store and Products and supersedes all previous or contemporaneous written and oral agreements and communications relating to the subject matter of the Store Terms; all of which are merged into the Store Terms. The Store Terms may not be modified or amended except in a writing signed by Big Bad Diesel Performance LLC and you.
19.5 No Waiver
All waivers by Big Bad Diesel Performance LLC will be effective only if provided in writing. Any failure or delay by Big Bad Diesel Performance LLC to strictly enforce any provision of these Store Terms will not operate as a waiver of that provision, any other provision, or any subsequent breach of that or any other provision.
Each provision in these Store Terms constitutes a separate and distinct provision severable from all other provisions. If any provision (or any part of a provision) is unenforceable under or prohibited by any present or future law, then the unenforceable provision (or part of the unenforceable provision) is amended to be in compliance with such law, while preserving the intent of the original provision to the extent possible. Any provision (or part of a provision) that cannot be amended will be severed from these Store Terms, and all the remaining provisions of these Store Terms will continue in full force and effect.
These Store Terms, and any associated rights or obligations, may not be assigned or otherwise transferred by you without Big Bad Diesel Performance LLC’s prior written consent. These Store Terms may be assigned by Big Bad Diesel Performance LLC without restriction. These Store Terms are binding upon any permitted assignee.
19.8 Proprietary Rights
Copyright © 2018 Big Bad Diesel Performance LLC. All rights reserved. All trademarks, logos, and service marks (“Marks”) displayed on the Store are the property of Big Bad Diesel Performance LLC or of their respective owners. You are not permitted to use any of the Marks without the applicable prior written consent of Big Bad Diesel Performance LLC or such respective owners.
BigBadDieselPerformance.com SALES TERMS