IMPORTANT – READ CAREFULLY: These Terms of Use (“Terms”) are a legal contract between you (“You” or “User”) and Blackwater Recovery LLC, a Wisconsin corporation (“Blackwater Performance”), for the use of this Internet Website (the “Website”), including the purchase of merchandise and services advertised on this Website (“Order” or “Orders”). Access to and use of this Website by any User is subject to these Terms, including any modifications or additions to these Terms from time to time issued by Blackwater Performance and all applicable laws and regulations. BY ACCESSING OR USING THIS WEBSITE, USER AGREES TO BE BOUND BY THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW, AND REPRESENTS AND WARRANTS TO BLACKWATER PERFORMANCE THAT USER IS AUTHORIZED TO ENTER INTO AND BE BOUND BY THESE TERMS ON USER’S BEHALF OR ON BEHALF OF THE ENTITY THAT USER REPRESENTS.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THIS WEBSITE.

1.   General

a.    This Website provides information about Blackwater Performance and its merchandise and services and facilitates the purchase of such merchandise and services. Most merchandise on this website is available for delivery only within the United States. In some instances larger equipment are unable to travel via truck freight due to size or common carrier requirements. Use of this Website is limited to legitimate purposes. Blackwater Performance may, from time to time, introduce new features to this Website or modify or delete existing features in its sole discretion. Blackwater Performance shall notify User of any of these changes to features to the extent Blackwater Performance is required by law to do so. By using any new or modified features when they become available, User agrees to be bound by these Terms concerning such features.

b.   Any access or attempt to access other areas of Blackwater Performance’s computer systems or other information contained on such systems for any purposes is strictly prohibited. User agrees not to interfere, in any way, with use of or access to this Website or take any action that imposes an unreasonable or disproportionately large load on this Website infrastructure. Blackwater Performance reserves the right to report any activity that it suspects would violate any law or regulation and disclose any information to appropriate law enforcement officials, regulators, or other appropriate third parties.

c.   Blackwater Performance shall have the right, in its sole discretion and without prior notice, at any time, and from time to time, to modify these Terms or to impose new terms and conditions with respect to access to or use of this Website or the placing of Orders hereunder. Such modifications and additions shall be effective immediately upon posting to this Website. Notice may be given by any means, including, without limitation, posting the modified or additional terms and conditions on this Website. If User disagrees with the changes to these Terms, User should discontinue User’s use of the applicable services on this Website. Any access to or use of this Website by User after posting of modifications or additions to these Terms shall constitute and be deemed to be such User’s agreement to such modifications or additions.

d.   Blackwater Performance also has the right to modify or discontinue, temporarily or permanently, this Website, any merchandise or services advertised by Blackwater Performance through this Website, or any User’s right to access or use any portion of this Website, in Blackwater Performance’s sole discretion, at any time and without prior notice, for any reason, including without limitation: (1) attempts to gain unauthorized access to this Website or assist others attempting to do so, (2) disabling any security features on this Website, (3) User’s violation of these Terms, (4) failure to pay for ordered merchandise or services or the applicable shipping charges, (5) suspected or actual infringement of a third party’s intellectual property rights, or (6) requests by law enforcement or other government agencies. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of these Terms for all purposes. User acknowledges and agrees that Blackwater Performance shall not be liable to User or to any third party for any modification, suspension or discontinuance of this Website or any merchandise or services advertised by Blackwater Performance or ordered by User through this Website.

2.   Orders

a.   USER REPRESENTS AND WARRANTS TO BLACKWATER PERFORMANCE THAT USER IS AUTHORIZED TO ENTER INTO AND BE BOUND BY THESE TERMS ON USER’S BEHALF OR ON BEHALF OF THE ENTITY THAT USER REPRESENTS. By ordering merchandise or services on this Website, User shall be deemed to have ordered the specified merchandise and/or services from Blackwater Performance pursuant to these Terms. The acceptance and fulfillment by Blackwater Performance of any Order placed on this Website is subject to User’s acceptance of all of these Terms. All other contrary terms and conditions are expressly rejected, and no addition or modification to these Terms shall be binding unless specifically agreed to in writing by Blackwater Performance. User accepts these Terms by placing an Order through this Website or by receiving delivery of any merchandise ordered by User from this Website. Blackwater Performance shall not be deemed to have accepted User’s Order unless and until Blackwater Performance sends to User, through electronic means, facsimile or other written communication, an acknowledgment that User’s Order has been confirmed and will be fulfilled by Blackwater Performance. Blackwater Performance’s acceptance of any Order by User is made only with the express understanding that these Terms shall govern any Order of merchandise and/or services through this Website by User.

b.   To purchase any merchandise and/or services on this Website, User must (a) be at least eighteen (18) years of age, or (b) be a natural person residing in, or a corporate entity incorporated or organized in, one of the 50 states of the United States. Prior to the purchase of any merchandise or services on this Website, User must provide Blackwater Performance with a valid credit card number and associated payment information including all of the following: (i) User’s name exactly as it appears on the credit card, (ii) User’s credit card number, (iii) the credit card type, (iv) the date of expiration and (v) any activation numbers or codes needed to charge User’s credit card. By submitting that information to Blackwater Performance, User hereby agrees that User authorizes Blackwater Performance to charge User’s card at Blackwater Performance’s convenience but within 20 days of credit card authorization. All sales of merchandise and services hereunder are final, and all charges from those sales are nonrefundable .

c.   All prices for merchandise and services on this Website are quoted in U.S. Dollars, are valid and effective only in the United States, and are subject to change at any time without notice. Price comparisons made on this Website highlight the relative savings amounts of the pricing reflected herein, with the “List Price” being the manufacturer’s suggested retail price (“MSRP”) provided to Blackwater Performance by the manufacturers. Blackwater Performance makes no representation or warranty that Blackwater Performance’s price is the lowest price available to User, or that any merchandise has been sold at the List Price. The “Customer Savings” reflected in this Website is the difference between Blackwater Performance’s sale price and the MSRP provided to Blackwater Performance.

d.   User shall be responsible for any tax or other governmental charge due to the sale, use or delivery of the merchandise, including, but not limited to, sales tax, use tax, retailer’s occupational tax, and Value Added Tax. Blackwater Performance shall automatically charge and withhold the applicable sales tax for Orders to be delivered to addresses in any states or localities that it deems is required.

e.   Merchandise availability is subject to change at any time, and Blackwater Performance makes no representations or warranties regarding the availability of merchandise in all areas. Blackwater Performance shall have the right to refuse or cancel any Orders placed for merchandise and/or services listed at an incorrect price or rebate amount, or containing any other incorrect information or typographical errors. Blackwater Performance shall have the right to refuse or cancel any such Orders whether or not the Order has been accepted by Blackwater Performance and/or User’s credit card has been debited. If User’s credit card has already been charged for the Order and User’s Order is refused or canceled, Blackwater Performance shall promptly issue a credit to User’s credit card account in the amount of the charge.

f.   All payments on this Website must be made by VISA, MasterCard, American Express and Discover Network. Unless expressly set forth on this Website, Blackwater Performance does not accept any other payment form. User’s credit card agreement with the issuer of such card governs User’s use of such card, and User must look only to that agreement and not these Terms to determine User’s rights and obligations relating thereto. User shall remain responsible for any unauthorized charges to or purchases using User’s credit card by a third party. User agrees to pay all fees and charges incurred in connection with User’s purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless User notifies Blackwater Performance of any discrepancies in charges for Orders under this Website within sixty (60) days after they first appear on User’s credit card statement, User agrees that they will be deemed accepted by User for all purposes. In the event Blackwater Performance does not receive payment from User’s credit card issuer or its agent, User shall pay all amounts due upon demand by Blackwater Performance.

g.   User’s receipt of an Order confirmation does not signify Blackwater Performance’s acceptance of such Order. Blackwater Performance reserves the right at any time after receipt of User’s Order to accept or decline User’s Order for any reason, or supply less than the quantity User ordered of any merchandise. User’s Order will be deemed accepted by Blackwater Performance only upon shipment of merchandise or performance of services that User has ordered.

h.   BLACKWATER PERFORMANCE RESERVES THE RIGHT, AT ANY TIME AND FROM TIME TO TIME, TO CHANGE ITS ORDERING AND BILLING PROCEDURES EFFECTIVE UPON POSTING ON THIS WEBSITE.

3.   Website Use

a.   Users who wish to order certain merchandise or services using this Website may be required to register on this Website by completing and executing a Registration Agreement. Blackwater Performance may accept or reject any Registration Agreement in its sole discretion. User represents and warrants that the information provided when registering is accurate, complete and current as of the date submitted and that User will update such information from time to time as necessary. These Terms shall be incorporated into, and form an integral part of, each Registration Agreement. Although Users are not required to register, if User does not register, User will be required to accept these Terms each time User wishes to access this Website or place an Order. As part of the registration process, User will select a user name (“User Name”) and a password (“Password”) to access the User Name. User’s User Name and Password are User’s credentials to access this Website. User may not have a User Name that is vulgar, attempts to impersonate another person, or violates the rights of others. Blackwater Performance also may reject any User Name that Blackwater Performance determines in its discretion is unacceptable for use on this Website. User is solely responsible for all use of this Website under its User Name and Password and for maintaining the confidentiality of its User Names and Passwords and will (i) promptly notify Blackwater Performance of any actual or suspected unauthorized use of this Website and (ii) ensure that User exits from User’s account at the end of each session.

b.   Blackwater Performance cannot and will not be liable for any loss or damage arising from User’s failure to comply with User’s obligations hereunder. Blackwater Performance reserves the right to suspend or terminate any User Name or Password upon notice to User that it reasonably determines may have been used for an unauthorized purpose. Blackwater Performance will not be liable for any damage, injury or other such loss that the User incurs by failing to maintain the confidentiality of the password or by otherwise failing to comply with these Terms.

c.   By establishing a User Name with Blackwater Performance, and each time User submits an Order through this Website, User authorizes Blackwater Performance to contact User at User’s e-mail address. User may stop receiving Blackwater Performance’s marketing e-mails by sending an e-mail to Blackwater Performance at optout@acmetools.com or follow the opt-out procedures set forth in such emails.

d.   User is solely responsible for maintaining the security of its Customer Number, User Name and Password. User may not disclose its Customer Number, User Name or Password to any third party (other than third parties authorized by the User to use the User’s account) and is solely responsible for any use of or action taken under its User Name and Password on this Website. User is responsible for changing its User Name and Password if either is compromised. User agrees that Blackwater Performance, in its sole discretion, may terminate User’s Password or User Name or use of this Website for any reason, including, without limitation, for lack of use, or if Blackwater Performance believes that User has violated or acted inconsistently with the letter or spirit of these Terms. User agrees that any termination of User’s Password or User Name or use of this Website may be effected without prior notice and acknowledges and agrees that Blackwater Performance may immediately deactivate or delete User’s account and all related information and files and/or bar any further access to such information and files. Further, User agrees that Blackwater Performance shall not be liable to User or any third party for any termination of User’s access, as provided herein.

e.   Blackwater Performance may, at its option, change the parameters for the Password used to access this Website without prior notice to User, and if Blackwater Performance does so, User will be required to change the User Password the next time User accesses this Website. To prevent unauthorized access to User accounts and to prevent unauthorized use of this Website, User agrees to protect and keep confidential its Customer Number, User Name, Password, or other means of accessing User accounts via this Website. If User discloses User’s Customer Numbers, User Name and/or Passwords to any person(s) or entity, User assumes all risks and losses associated with such disclosure. If User permits any other person(s) or entity to use this Website or to access or use User’s Customer Numbers, User Name, Passwords, or other means to access User accounts, User is responsible for any transactions and activities performed from User accounts and for any use of User personal and account information by such person(s) or entity.

f.   User may use the records, documents and information obtained through this Website only as necessary to use this Website’s services or to place an Order with Blackwater Performance. Without limiting the foregoing or expanding any User rights hereunder, User agrees that it will not (A) republish, reproduce, sell, resell, distribute (through linking or framing or otherwise) or make any commercial use of this Website (other than the ordering of merchandise in accordance with these Terms and the Registration Agreement) or any of the information available through this Website; (B) make any use of any such information or the facilities of Blackwater Performance that would allow an unauthorized third party to have access to or the benefits of this Website; (C) collect or use other users’ e-mail addresses or other users’ information, ratings or listings, or otherwise conduct any data extraction or data mining whatsoever.

g.   User agrees that, while using this Website, User will not: (A) transmit or post on this Website any message under a false name; (B) transmit or post on this Website any unlawful, libelous, defamatory, threatening, abusive, harassing or otherwise objectionable information of any kind, including, without limitation, any transmission constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise under any applicable law; (C) transmit or post on this Website any record, document or information that discloses private or personal matters concerning any person, including, but not limited to, messages or information that would violate a person’s rights of privacy or publicity; (D) transmit or post on this Website any record, document, information, file or software that contains a virus, worm, Trojan Horse or any other contaminating or destructive features; (E) transmit or post on this Website any record, document, information, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets, confidential or other proprietary information, or use of trademarks or service marks in an infringing fashion; (F) interfere, in any way, with other use of or access to this Website; (G) offer for sale or sell illegal merchandise, including counterfeit merchandise or merchandise or services that violate or infringe upon the patent rights, copyrights, trade secrets, trademarks or other intellectual property rights or other rights of any person or entity; (H) modify, delete or alter any information or Order placed by or on behalf of any other User.

h.   User agrees to comply with all applicable laws, statutes and regulations regarding use of this Website, including ordering and/or purchasing merchandise. Blackwater Performance may report fraudulent conduct to law enforcement authorities, and Blackwater Performance will cooperate to ensure that violators are prosecuted to the fullest extent of the law. In addition, Blackwater Performance reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. In order to cooperate with governmental requests, to protect Blackwater Performance’s systems and customers, or to ensure the integrity and operation of Blackwater Performance’s business and systems, Blackwater Performance may access and disclose any information it considers necessary or appropriate, including, without limitation, User contact details, IP addressing and traffic information, usage history and posted content. Recognizing the global nature of the Internet, User agrees to comply with all local rules regarding online conduct and acceptable content. Specifically, User agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which User resides.

4.   Confidentiality.

a.   Blackwater Performance holds the confidentiality of its Users in the highest regard and will take all commercially reasonable measures not to disclose information about User or User’s communications to any other party, except when Blackwater Performance believes, in good faith, that such action is reasonably necessary to: (i) comply with applicable law or with legal process; (ii) enforce these Terms; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the legitimate interests of Blackwater Performance or others. Notwithstanding the foregoing, User acknowledges and agrees that any information it enters in this Website may be viewed by any other user with access to User’s Customer Number.

b.   Notwithstanding the foregoing, User agrees that any information or materials that User or individuals acting on User’s behalf provide to Blackwater Performance will not be considered confidential or proprietary. By providing any such information or materials to Blackwater Performance, User grants to Blackwater Performance an unrestricted, irrevocable, worldwide, royalty-free license to use, reproduce, display, publicly perform, transmit and distribute such information and materials. User further agrees that Blackwater Performance is free to use any ideas, concepts or know-how that User, or individuals acting on User’s behalf, provides to Blackwater Performance.

5.   Privacy Policy.

a.   Registration data, and certain other information about User, is subject to Blackwater Performance’s Privacy Policy. Blackwater Performance does not sell, rent, or give personally identifiable information about Users to third parties, except as specified in these Terms or in its Privacy Policy, User must disclose certain Personally Identifiable Information to use this Website, register, and make purchases. As a condition of registering with this Website or making any purchases of any merchandise and/or services or conducts any transactions, User represents that User has first read Blackwater Performance’s Privacy Policy and consents to the collection, use and disclosure of User’s Personally Identifiable Information and Non-Personally Identifiable Information as described in Blackwater Performance’s Privacy Policy. Blackwater Performance’s Privacy Policy’s terms and conditions will change from time to time, and as a condition of browsing this Website, using any features or making any purchase, User agrees that User will first review Blackwater Performance’s Privacy Policy prior to making any initial or subsequent purchases.

b.   While Blackwater Performance takes reasonable steps to safeguard and to prevent unauthorized access to Users’ personal information, Blackwater Performance cannot be responsible for the acts of those who gain unauthorized access, and Blackwater Performance makes no warranty, express, implied, or otherwise, that Blackwater Performance will prevent unauthorized access to Users’ private information. IN NO EVENT SHALL BLACKWATER PERFORMANCE OR ITS AFFILIATES BE LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR OTHERWISE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, A THIRD PARTY’S UNAUTHORIZED ACCESS TO USERS’ PERSONAL INFORMATION, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER BLACKWATER PERFORMANCE WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE.

6.   Website Content

a.   The information and materials posted on this Website by Blackwater Performance or any other party may contain errors, omissions, or typographical errors or may be out of date. Blackwater Performance may change, delete, or update any information or materials posted by Blackwater Performance at any time, from time to time, without prior notice. The information and materials posted on this Website by Blackwater Performance are provided for informational purposes only and are not binding on Blackwater Performance in any way except as otherwise expressly agreed to in writing by Blackwater Performance.

b.   User understands that certain merchandise, services and information advertised on or through this Website (other than merchandise, services and information clearly identified as being supplied directly by Blackwater Performance) are provided by third parties that are not affiliated with or under the control of Blackwater Performance. Blackwater Performance does not operate, control, endorse, guaranty, represent or warrant in any way any merchandise, services or information offered or provided by such third parties on or accessed through this Website.

c.   Links and references on this Website to other Internet websites operated by third parties, if any, including Blackwater Performance’s corporate partners, do not constitute sponsorship, endorsement, or approval by Blackwater Performance of the content, policies, or practices of such linked or referenced websites. Linked and referenced websites are not operated, controlled, or maintained by Blackwater Performance, and Blackwater Performance is not responsible for the availability, content, policies, or practices of linked or referenced websites. Links and references to other websites are provided for User’s convenience only, and User accesses them at his/her own risk.

d.   Blackwater Performance is not liable for content that is provided by others. Blackwater Performance cannot and does not screen the content provided by users of this Website. Notwithstanding the foregoing, Blackwater Performance reserves the right to monitor content on this Website and to remove content that Blackwater Performance, in its sole discretion, determines to be harmful, offensive, or otherwise in violation of applicable law, these Terms or the spirit of this Website. Blackwater Performance is not responsible for any failure or delay in removing such material. Blackwater Performance is not responsible for content made available on the Internet.

7.   DISCLAIMER OF WARRANTY. USER UNDERSTANDS AND AGREES THAT USER’S USE OF THIS WEBSITE IS AT USER’S SOLE RISK AND THAT THIS WEBSITE AND ALL INFORMATION, MERCHANDISE AND OTHER CONTENT (INCLUDING THIRD-PARTY INFORMATION, MERCHANDISE AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THIS WEBSITE ARE PROVIDED ON AN “AS IS”, “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO USER. TO THE FULLEST EXTENT PERMITTED BY LAW, BLACKWATER PERFORMANCE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THIS WEBSITE AND ALL INFORMATION, MERCHANDISE AND OTHER CONTENT (INCLUDING THIRD-PARTY INFORMATION, MERCHANDISE AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THIS WEBSITE. NO LICENSE TO USER IS IMPLIED IN THESE DISCLAIMERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) BLACKWATER PERFORMANCE MAKES NO WARRANTIES OR REPRESENTATIONS WHATSOEVER CONCERNING THIS WEBSITE OR ANY OTHER INTERNET WEBSITE, THE ACCESS TO, OR THE AVAILABILITY OR USE OF, THIS WEBSITE OR ANY OTHER INTERNET WEBSITE, THE INFORMATION, MATERIALS, RECORDS OR DOCUMENTS FROM WHATEVER SOURCE, POSTED ON OR REFERRED TO IN THIS WEBSITE OR ANY OTHER INTERNET WEBSITE OR THE CONTENT, ACCURACY, COMPLETENESS OR TIMELINESS OF SUCH INFORMATION, MATERIALS, RECORDS OR DOCUMENTS; (II) BLACKWATER PERFORMANCE DOES NOT WARRANT OR REPRESENT THAT USER’S ACCESS TO, OR USE OF, THIS WEBSITE OR ANY OTHER INTERNET WEBSITE WILL BE UNINTERRUPTED OR FREE OF ERRORS OR OMISSIONS, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEBSITE OR ANY OTHER INTERNET WEBSITE IS, OR THE RECORDS, DOCUMENTS, SOFTWARE OR FILES FROM WHATEVER SOURCE AVAILABLE FOR USE OR DOWNLOADING ARE, FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS; (III) BLACKWATER PERFORMANCE DOES NOT REPRESENT OR WARRANT THAT ANY MERCHANDISE OR SERVICES LISTED ON, OR ACCESSED THROUGH, THIS WEBSITE WILL BE AVAILABLE FOR PURCHASE OR NOT WITHDRAWN BY THE LISTING VENDOR AT ANY TIME, AND IT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER CONCERNING SUCH MERCHANDISE OR SERVICES; AND (IV) BLACKWATER PERFORMANCE DOES NOT REPRESENT OR WARRANT THE ACCURACY, FUNCTIONALITY, SPECIFICATIONS OR ANY OTHER ASPECT OF MERCHANDISE FROM WHATEVER SOURCE POSTED OR ACCESSED THROUGH THIS WEBSITE. USER ACKNOWLEDGES AND AGREES THAT THE ONLY WARRANTIES ON ANY MERCHANDISE AVAILABLE ON THIS WEBSITE SHALL BE THE WARRANTIES INCLUDED WITH SUCH MERCHANDISE, IF ANY. PLEASE NOTE THAT SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO USER.

8.   LIMITATION ON LIABILITY

a.   UNDER NO CIRCUMSTANCES WILL BLACKWATER PERFORMANCE BE LIABLE TO USER OR ANY OTHER ENTITY OR PERSON FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY, ARISING IN ANY WAY OUT OF OR IN ANY WAY RELATED TO, ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THIS WEBSITE OR ANY OTHER INTERNET WEBSITE OR THE CONTENTS OF THIS WEBSITE OR ANY OTHER INTERNET WEBSITE, INCLUDING BUT NOT LIMITED TO LOST PROFITS, SALES, OR GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF PROGRAMS OR OTHER DATA ON COMPUTER SYSTEMS OR OTHERWISE, EVEN IF BLACKWATER PERFORMANCE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER AGREES THAT USER’S ONLY REMEDY FOR ANY USE OF OR DISSATISFACTION WITH THIS WEBSITE OR BLACKWATER PERFORMANCE SHALL BE TO DISCONTINUE USE OF THIS WEBSITE.

b.   IF A DISPUTE ARISES BETWEEN TWO OR MORE USERS, OR BETWEEN A USER AND A THIRD-PARTY VENDOR, EACH USER RELEASES BLACKWATER PERFORMANCE (AND ITS AFFILIATES AND THEIR RESPECTIVE AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.

9.   Trademarks and Copyrights:

a.   Unless otherwise noted, the trademarks, logos, photography, brand names and service marks used on this Website are owned by Blackwater Performance or by third parties that have licensed their use to Blackwater Performance. User may print copies of the content of this Website, provided that these copies are made only for internal use, and that any notices contained in any such content, such as all copyright notices, trademark legends, or other proprietary rights notices, are maintained. Other use of these marks or Website content, except as specifically permitted in these Terms or in a writing signed by Blackwater Performance, is strictly prohibited. Elements of this Website are protected by trade dress, trademark, unfair competition and other state and federal laws and, except as expressly permitted herein, may not be copied or imitated in whole or in part by any means, including, but not limited to, the use of framing or mirrors. User shall not store electronically any significant portion of this Website contained in any such content, such as all copyright notices, trademark legends, or other proprietary rights notices, are maintained. Other use of these marks or Website content, except as specifically permitted in these Terms or in a writing signed by Blackwater Performance is strictly prohibited. Elements of this Website are protected by trade dress, trademark, unfair competition and other state and federal laws and, except as expressly permitted herein, may not be copied or imitated in whole or in part by any means, including, but not limited to, the use of framing or mirrors. User shall not store electronically any significant portion of this Website.

10.   Indemnification.

a.   User agrees to defend, indemnify and hold harmless Blackwater Performance, its corporate affiliates and partners, and their affiliates and related entities and their respective directors, officers, shareholders, employees, and agents from and against all claims, losses, damages, liabilities and costs (including, but not limited to, reasonable attorneys’ fees and court costs), arising out of or relating to User’s breach of these Terms or User’s access to or use of this Website.

11.   Miscellaneous

a.   The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to these Terms, and any agreement into which these Terms are incorporated by reference, including, without limitation, any Registration Agreement, as a whole and not to any particular provision. Any pronoun used shall be deemed to cover all genders. Wherever appropriate in the context, terms used herein in the singular also include the plural and vice versa. All references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations.

b.   These Terms, together with any agreement into which these Terms are incorporated by reference, including, without limitation, any Registration Agreement, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter.

c.   These Terms may be waived only in writing signed by an authorized representative of Blackwater Performance. No waiver by Blackwater Performance of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default, and the failure to exercise any right arising from any default hereunder shall not be deemed a waiver of such right that may be exercised at any subsequent time.

d.   If any provision hereunder shall be unlawful, void, or for any reason unenforceable, then such provision shall be deemed severable from the other provisions hereunder and shall not affect the validity and enforceability of any other provisions hereunder.

e.   Blackwater Performance shall not be liable for any nonperformance or delay in performance caused by any act or event beyond its reasonable control, including, but not limited to, acts or omissions of third parties, unavailability of supplies, equipment failure, war, strikes, lockouts, fire, flood or any other act of God, any law, regulation, ordinance or other act or Order of any court, government or governmental agency, or delays, unavailability, errors or other failures of the Internet or other data networks.

f.   Access to or use of this Website by User shall not be construed as Blackwater Performance’s purposeful availment of the privilege or benefits of doing business in any state or legal jurisdiction other than the State of Illinois. User’s agreement to these Terms shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to its conflicts or choice of laws principles. In any dispute arising hereunder or otherwise connected with this Website or these Terms, the parties hereto consent exclusively to personal jurisdiction in the United States District Court of Wisconsin, or if that court lacks subject matter jurisdiction, in the courts of the State of Wisconsin, County of La Crosse.

g.   These Terms shall be binding on the successors and assigns of the parties, including, but not limited to, the indemnity obligations set forth herein, but User may not assign, transfer or delegate its rights or obligations under these Terms without Blackwater Performance’s prior express written consent.

h.   No right or remedy conferred upon or reserved to Blackwater Performance by these Terms shall be exclusive of any other right or remedy herein or by contract or law, and all rights or remedies conferred upon Blackwater Performance by these Terms and by law shall be cumulative and in addition to any other right or remedy available to Blackwater Performance.

i.   Additional Terms. The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to specific services offered on this Website.

12. Policy for Return of Merchandise.

a.   By placing an Order on this Website, User indicates that User has read and agrees to Blackwater Performance’s Returns Policy. The Returns Policy may be changed from time to time and is effective immediately after Blackwater Performance posts the changes on this Website. In addition, when using particular services on this Website, User agrees that User is subject to any posted policies or rules applicable to any such services User uses through this Website, which may be posted on this Website from time to time. Any such posted policies or rules are hereby incorporated by reference into this Agreement as if fully set forth herein.

13. Mobile Messaging.

a.   By subscribing to each of Blackwater Performance’s mobile messaging programs, you agree to receive autodialed marketing messages (text messages) to the telephone number used at the time of opt in. Message frequency may vary. Message and data rates may apply. Consent is not required as a condition of purchasing any goods or services. In the event that you change or deactivate your mobile number, it is your responsibility to notify Blackwater Performance to have your number removed. Terms & Conditions are subject to change. The mobile carriers are not liable for delayed or undelivered messages.