Terms & Conditions

1. Acceptance of Terms

These Terms are between Member and Performance Market Inc. (“Performance Market Inc.” or “Performance Market”) and govern our respective rights and obligations. The Website includes any version of this Website that is optimized or configured for use by mobile computing devices such as smartphones and tablets, as well as mobile applications and any other websites owned or operated by Performance Market. These Terms and Conditions of Use (“Terms and Conditions”) govern access to and use of the Website and services or products provided by performancemarket.ca as made available on the Website or otherwise (“Services”).

By accessing the Website and/or downloading this page, you acknowledge that you have read, understood and agree to be bound by these Terms and Conditions. You also agree to comply with applicable laws and regulations. Your continued use of the Website shall constitute your agreement to these Terms and Conditions. We reserve the right to change these Terms and Conditions from time to time without notice to you. Any amended version of the Terms and Conditions will take effect when posted on the Website by us. Your continued use of the Website will constitute your acceptance of any changes to the Terms and Conditions. If you have any questions regarding these Terms and Conditions, please contact us. We reserve the right to temporarily or permanently bar anyone from using the Website if they have been found to be acting in any way contrary to these Terms and Conditions or have exposed (or potentially exposed) us to legal liability to a third party. Any person we intend to bar in this way will be notified by e-mail in advance if reasonably possible.

BY USING THE SITE AND SERVICES, YOU ACKNOWLEDGE THAT YOU ARE AT LEAST EIGHTEEN (18) YEARS OF AGE, YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, AND EXPRESSLY CONSENT TO PERFORMANCEMARKET.CA PRIVACY POLICY. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS THE SITE OR USE ANY PRODUCTS.

2. Use of the Website

2.1 User Obligations

      • You are solely responsible for any breach of obligation arising from the use of the website.
      • Unauthorized access or use of the website, including through automated means, is strictly prohibited.
      • Prohibited activities include but are not limited to, scraping, data mining, diverting customers, and sending unsolicited emails.
      • Performance Market inc. reserves the right to refuse service, terminate accounts, and withdraw or amend the website without notice.

2.2 Unless expressly indicated otherwise, Performance Market Inc. is not the manufacturer of the products sold on the website. Actual product packaging and materials may contain more and different information to that displayed on the website. All information about the products on the website is provided for information purposes only, and to the fullest extent permitted by law and for Quebec consumers to the extent permitted under Quebec law, Performance Market Inc. makes no warranties or representations as to the website’s accuracy. We recommend that you do not rely solely on the information presented on the website. Please always read labels, warnings and directions provided with the product before use.

2.3 Healthcare Disclaimer: For healthcare-related products, in the event of any safety concerns or for any other information about a product, please carefully read the information provided with the product or contact the manufacturer. Content on the website is not intended to substitute for advice given by a medical practitioner, pharmacist, or other licensed healthcare professional. Contact your healthcare provider immediately if you suspect that you have a medical problem and contact 911 in case of an emergency. Information and statements about products are not intended to be used to diagnose, treat, cure, or prevent any disease or health condition.

2.4 Severability: “If a provision of this Agreement is or becomes illegal, unenforceable, or invalid in any jurisdiction, it shall not affect (1) the enforceability or validity in that jurisdiction of any other provision of this Agreement, or (2) the enforceability or validity in other jurisdictions of that or any other provision of this Agreement.” We reserve the right to assign this Agreement and make amendments, including modifying, adding, or removing policies or terms. We will notify you of any changes through our Message Centre and/or email, providing a 30-day notice if required by law. Your continued use of our services implies acceptance of the amended terms. Failure to agree requires termination of your Performance Market Inc. account.

2.5 Heading and Waiver: Headings are for reference purposes only and do not limit the scope of the sections. Our failure to act with respect to a breach by you or others does not waive our rights to act with respect to subsequent or similar breaches.

3. Intellectual property & trademarks

3.1 Intellectual Property: All content included on the Website, such as text, graphics, logos, images, videos, digital downloads, data, software, any other material, and the design selection and arrangement thereof and all intellectual property rights in and to such content, design, selection and arranged are owned by or licensed to Performance Market and is protected by prevailing intellectual property laws. Performance Market’s name, logos, service names, designs, and slogans are trademarks of Performance Market. You must not use such marks without the prior written permission of Performance Market. All other names, logos, product and service names, designs and slogans that appear on the Website are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Performance Market. You must not use such marks without the prior written permission of their owner.

3.2 Trademarks: ©, ™, ℠, ® * as represented throughout this Website site refer to copyright, trademark, common law trademark or trade names owned by the company doing business as Performance Market Inc. and/or its affiliates with the exception of trademarks owned by others and used by the Performance Market Inc. under license. All rights are reserved.

4. Notice; Claims of Intellectual Property Violations and Copyright Infringement

4.1 We respect the intellectual property of others. We will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided through the Performance Market Website infringe upon that person’s or entity’s copyright or other intellectual property right (such person or entity, a “Complainant”) and sends to us a properly submitted copyright notice as indicated below, we will investigate, and if we determine, in our discretion, that the material is infringing, we will remove the content.

4.2 How to submit a copyright notice: All notices claiming an infringement of copyright rights must contain the following: (i) identification of the intellectual property right that is allegedly infringed (all relevant registration numbers, or a statement concerning the Complainant’s ownership of the work, should be included); (ii) a statement specifically identifying the location of the infringing material, with enough detail that we may find it (please note it is not sufficient to merely provide a top-level URL); (iii) the complete name, address, telephone number, and e-mail address of the Complainant; (iv) a statement that the Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law; (v) a statement that the information contained in the notification is accurate, and under the penalty of perjury, the Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed. Performance Market’s contact information for notice of alleged copyright infringement is via email: info@performancemarket.ca.

4.3 Except as explicitly stated otherwise, legal notices shall be served on Performance Market Inc.’s registered agent. You consent to receive communication from us electronically. We may communicate with you by email to the email address you have designated on your member account. Notice to you shall be deemed given 24 hours after the email is sent. Alternatively, we may give you legal notice by mail to the registration address associated with your account. In such case, notice shall be deemed given three days after the date of mailing.

4.4 If Performance Market Inc. provides you with information about another member, you agree you will use the information only for the purposes it is provided to you. You may not disclose or distribute a member’s information to a third party for purposes unrelated to the services. Additionally, you may only send marketing communications to members who have consented to receive them, and only using Performance Market Inc. services.

4.5 Indemnification: To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Performance Market, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms.

5. Legal Disputes

5.1 Dispute Resolution: Arbitration. Any dispute or claim relating in any way to your use of the Performance Market Inc. will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms and Conditions as a court would. Improperly filed claims may result in the recovery of attorney’s fees and costs by Performance Market Inc.

5.2 Confidentiality: All Arbitration proceedings shall be confidential unless otherwise required by law.

5.3 Prevailing Party: The prevailing party in any arbitration or legal proceedings shall be entitled to recover all fees and expenses, including attorney’s fees, as determined by the arbitrator.

5.4 Opt-Out-Provision:  You have the option to opt-out of the agreement to arbitrate by notifying Performance Market Inc. in writing within 20 calendar days.

5.5 Any dispute resolution proceeding arising out of or related to these terms or the sales transactions between you and Performance Market Inc., whether in arbitration or otherwise, shall be conducted only on an individual basis and not in a class, consolidated or representative action, and you and Performance Market Inc. expressly agree that class action and representative action procedures shall not be asserted in nor apply to any arbitration pursuant to these terms.

5.6 You also agree not to bring any legal action, based upon any legal theory including contract, tort, equity or otherwise, against Performance Market Inc. that is more than one year after the date of the applicable invoice. Performance Market Inc. is not authorized to do business in every jurisdiction. Information published on the website may contain references or cross-references to goods or services that are not available in your province or country.

6. Disclaimer of Warranties; Limitation of Liability

6.1 We have tried to include accurate, complete and current information on this Website. However, we make no guarantees or warranties (whether express or implied) about this Website or its contents. The information contained in this Web site is provided “AS IS”. We disclaim all responsibility for its use or misuse and assume no responsibility to you or any third party for the consequences of any errors or omissions.

YOU EXPRESSLY AGREE THAT USE OF THE SITE AND RELIANCE ON ITS CONTENT IS AT YOUR OWN RISK. PERFORMANCE MARKET, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE THIRD-PARTY LICENSORS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE WEBSITE, THE SOFTWARE, THE CONTENT, THE MATERIALS, THE LISTING SERVICE OR THE RESULTS THAT MAY BE OBTAINED FROM USE OF ANY OF THE FOREGOING. THE SITE, THE SOFTWARE, THE CONTENT, THE MATERIALS AND THE LISTING SERVICE ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS, AND PERFORMANCE MARKET, ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE THIRD-PARTY LICENSORS SPECIFICALLY DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF NONINFRINGEMENT. ALL INFORMATION RELATED TO PRODUCTS AVAILABLE ON THIS WEBSITE IS SUPPLIED BY THE SELLER OR OTHER THIRD PARTIES. PERFORNANCE MARKET AND ITS SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, TO ANY ACTUAL OR PROSPECTIVE PURCHASER OR OWNER OF ANY PRODUCT AS TO THE EXISTENCE, OWNERSHIP OR CONDITION OF THE PRODUCT, OR AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ABOUT A PRODUCT ADVERTISED ON THE WEBSITE. PERFORNANCE CANNOT AND DOES NOT VERIFY OR WARRANT THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. PERFORNANCE MARKET RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO CORRECT ANY ERROR OR OMISSION ON THE WEBSITE OR IN THE CONTENT. ANY AND ALL CONCERNS, DIFFERENCES OR DISCREPANCIES REGARDING A PRODUCT MUST BE ADDRESSED WITH THE SELLER PRIOR TO THE SALE OF THE PRODUCT. EXCEPT AS EXPRESSLY SET FORTH IN THE SELL IT YOURSELF TERMS AND CONDITIONS, PERFORNANCE MARKET DOES NOT MAKE AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES TO YOU REGARDING THE LISTING SERVICE INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT YOU WILL SELL YOUR PRODUCT, OBTAIN AN ACCEPTABLE PRICE FOR YOUR PRODUCT, ONLY RECEIVE LEGITIMATE INQUIRIES OR SOLICITATIONS FROM QUALIFIED BUYERS, OR RECEIVE ANY INQUIRIES REGARDING YOUR PRODUCT FOR SALE. FOR PURPOSES OF THIS WARRANTY DISCLAIMER, “THIRD-PARTY LICENSOR” DOES NOT INCLUDE YOU. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

7. Third Party Rights

7.1 Except as otherwise provided by applicable law, you will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, and agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of Performance Market Inc.’s Services or your breach of any law or the rights of a third party.

No third party shall have any rights to enforce any of its terms except for manufacturers and sellers referred to in the Terms – such manufacturers and sellers will only have right to enforce any terms against you (and not against Performance Market Inc.), including any limitation or exclusion of liability in favor of Performance Market Inc. under these Terms. Except where expressly stated in these terms, neither you nor Performance Market Inc. will need to get the agreement of any third party to end the contract or make any changes to these Terms.

7.2 We may offer product data (including product images, descriptions, and specifications) that are provided by third parties (including Performance Market Inc. members).

7.3 Performance Market Inc. will arrange for shipment of ordered product(s) to you, Free Carrier meaning risk of loss passes to you upon delivery to the carrier. Title to the product(s) – excepting software – will also pass to you upon delivery to the carrier. Title to software will remain with the licensor(s). All software is provided subject to the license agreement of the software maker. You agree to be bound by any software license agreement once the seal on the package is broken.

8. Policy Enforcement

8.1 When a buyer or seller issue arises, we may consider the member’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement to do the right thing for both buyers and sellers. The foregoing does not limit or impair our right to refuse, modify, or terminate all or part of our services to anyone, or to terminate this agreement with anyone, for any reason at our discretion.

9. Posting content on the Website

9.1 You may post content on the website, including, but not limited to, testimonial, feedback, reviews, and blogs. If you post content on the website, you agree to comply with these Terms and Conditions, acknowledge that any personal data you submit through such posting will be processed in accordance with these Terms and Conditions (and you consent to this where required under applicable law). Please also note that other members of the website will be able to see the content you upload.

9.2 Personally identifiable information that may be received at the Performance Market Website is provided voluntarily by a visitor to the Website and is governed by the terms of our Privacy Policy. You acknowledge that you are responsible for whatever material you submit, and you, not Performance Market, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright. You are prohibited from posting or transmitting to or from this Website any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law. If applicable, Performance Market reserves the right to delete, move or edit messages that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of copyright or trademark laws, or otherwise unacceptable, and you waive any moral rights you may have in having the material altered or changed in a manner not agreeable to you.

9.3 You acknowledge and agree that you are solely responsible for all content and the accuracy of all content you make available in connection with the website. You represent and warrant that:

  • You and not someone else composed and posted the content on the website;
  • You own or otherwise control all of the rights to the content that you post on the website;
  • You have the authority to grant the rights in such content; and
  • Such content, and the use of such content, will not violate these Terms.

10. Restrictions and prohibited uses

10.1 .You agree that you will not use Performance Market Website for any improper, fraudulent, illegal, or malicious purpose, including, without limitation, to impair use of the Performance Market Website by others. You agree not to modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Performance Market Website. You also agree not to use the Performance Market Website to create, develop, or otherwise generate any derivative works or any functionally compatible or competing software or hardware. You may not upload or post any material on the Performance Market Website that is protected by copyright, trademark, or other intellectual property rights unless you are the owner of those rights or have the prior written consent of the owner(s) of those rights to use such material. Performance Market, without prior notice to you and in its sole discretion, remove any material from its website that violates these terms or any material that Performance Market otherwise considers inappropriate for display on its website. If, after notice of posting inappropriate or non-permitted material, you repeat such actions, Performance Market may terminate your access to the Website without notice to you. In the event of such action, you are not entitled to a refund for any fee or any other form of compensation.

10.2 Performance Market Inc. may, in its sole discretion, at any time, remove or deny content for any reason, including, but not limited to, when the content contains any of the following:

  • Hyperlinks/URLs;
  • References to other stores/resellers;
  • Comments on products that were either physically damaged or misused;
  • Comparisons to competing brands/products of competing brands;
  • References to aftermarket procedures or installation techniques not mentioned specifically in the original product documentation; such as overclocking, hacked drivers, tweaking/modding, and etc.; or
  • Replies to existing customer reviews; please do not attempt to initiate discussions here.

10.3 You are prohibited from posting content on the Website that is:  

  • Offensive or abusive;
  • Obscene, pornographic, or otherwise objectionable;
  • Illegal;
  • False, fraudulent, inaccurate, or misleading;
  • Derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any person or entity;
  • Violent or threatening, or promotes violence or actions that are threatening;
  • Infringing the rights of others, including, but not limited to patent, copyright, trademark, trade secret, trade dress, right of privacy, or any other proprietary right;
  • Intending to cause harm, damage, or otherwise interferes with the website and our services;
  • Violating any of our policies;
  • Violating any local, provincial, federal, or international laws;
  • Injurious to third parties;
  • Contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam” or unsolicited commercial electronic messages; or
  • Undergoing international sanctions.

11. Right to use content

11.1 By submitting ads, content, photos, data or other materials (“Materials”) to the Site, you hereby grant Performance Market and its affiliates and subsidiaries an irrevocable, perpetual, fully sublicensable (through multiple tiers), transferable, non-exclusive, and royalty-free worldwide right and license to use, copy, modify, adapt, publish, transmit, perform, delete, translate, and create derivative works, incorporate and imbed into other works, and distribute, and display such content throughout the world in any medium or form now existing or later created through provision, expansion, and promotion of the services, in any media known now or developed in the future. You also agree to the following:

  • We may use the content for any purpose;
  • We may use the content with or without any pseudo (pen) name credit and you hereby waive or, to the extent that a waiver is not permissible under the applicable law, undertake not to assert any moral or equivalent rights you may have in any jurisdiction in and to such content;
  • The reprint or use of the content will be at our discretion and without compensation; and
  • We may use the content locally, nationally, or globally and such use may be made in any media, information, or communication platform (including Internet advertising) currently in use or later developed.

 

11.2 To the fullest extent permitted under applicable law, you waive your right to enforce your intellectual property rights in that content against Performance Market Inc., our assignees, our sublicensees, and their assignees in connection with our, those assignees’, and those sublicensees’ use of that content in connection with the provision, expansion, and promotion of the Services.

12. Right to monitor content

8.1 Performance Market does not monitor the Materials, Forums or Listing Service (collectively, “Content”) posted or transmitted by you and/or other third-party information providers. Performance Market Inc. has the right, but not the obligation, in its sole discretion, at any time, for any reason, to monitor, analyze, edit, move, remove, or refuse to make available any content made available through the website. You are solely responsible for any content you post, upload, or otherwise make available through your use of the website. You further acknowledge and agree that we do not authorize, condone, or endorse any content of any other member, and are not responsible for the accuracy, legality, or decency of such content.

8.2 We try to offer reliable product data, but we cannot promise that the content provided through the services will always be available, accurate, complete, and up to date. You agree that Performance Market Inc. is not responsible for examining or warranting the listings or content provided by third parties through the services, and that you will not attempt to hold us or data providers liable for inaccuracies. As a seller, you agree to ensure that content directly associated with your listings is accurate.

13. Contact Authorization; Recording Calls; Analyzing Message Content

13.1 Performance Market Inc. may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this Agreement, our policies, applicable law, or any other agreement we may have with you. Performance Market Inc. may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits.

13.2 Performance Market Inc. may share your telephone numbers with its authorized service providers. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by Performance Market Inc. to carry out the purposes identified above.

13.3 Performance Market Inc. may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Performance Market Inc. or its agents for quality control and training purposes, or for its own protection.

13.4 Performance Market’s automated systems scan and analyze the contents of every message sent through its messages platform, including messages between members, to detect and prevent fraudulent activity or violations of Performance Market Inc’s Terms and Conditions, including the incorporated terms, notices, rules, and policies. This may result in a manual review of messages sent through our messaging tools. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Performance Market Inc. may store message contents, including to conduct this scanning and analysis.

13.5 Performance Market Inc. does not consent to having any telephone calls recorded and reserves the right to terminate any call that is being recorded. You agree not to record any call with Performance Market Inc. unless you have provided clear and conspicuous notice to Performance Market Inc. and have received prior written consent from Performance Market Inc.

14. Registering for an account

14.1 To register for a Performance Market Inc. account, you must register for and maintain an Account. Account registration requires you to submit personal information, including your name, email address, address, and/or mobile phone number, and/or at least one valid payment method. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Services or Performance Market’s termination of this Agreement. Your username and password are for your personal or commercial use only. To ensure that your username and password remain confidential, do not share this information with anyone. You are responsible for maintaining the confidentiality of your account information and for restricting access to your computer or mobile device, and you agree to accept responsibility for all activities that occur under your account. In the event your password is lost or stolen it is your responsibility to notify Performance Market Inc. at the address listed in the “Contact Us” section. In case of a compromised password: Performance Market Inc will block the affected account within 30 days of a formal member request. Performance Market Inc. may, in its sole discretion, at any time, for any reason, deactivate, block, or freeze your account.

14.2 We sometimes offer certain customers various trial or other promotional memberships, which are subject to these Terms and Conditions except as otherwise stated in the promotional offers. Trial members may at any time choose not to continue to a paid membership at the end of the trial period. Promotional offers, deals, promo codes, rebates, gifts, combo specials, bundle specials, discounts, etc. are subject to change without notice.  In addition, Performance Market Inc. reserves the right to modify or cancel promotions at any time, for any reason, and without notice, but will honor orders to which promotions have been applied which have already been placed.

14.3 If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.

15. Membership Cancellation

15.1 You may cancel your Performance Market Inc. membership any time by visiting your account and adjusting your membership settings. If you cancel within 14 days of signing up for or converting from a free trial to a paid membership, we will refund your full membership fee; we may charge you (or withhold from your refund) the value of benefits used by you and your account during this 14-day period. If you cancel at any other time, we will refund your full membership fee only if you and your account did not make any eligible purchases or take advantage of Performance Market Inc. benefits since your latest membership charge. Performance Market Inc. memberships redeemed through a gift code or promotional code are not refundable.

16. Termination by Us

16.1 You understand and agree that in Performance Market’s sole discretion, and without prior notice, your access to the Website or Services may be terminated or suspended, and Performance Market may exercise any other remedy available and remove any Content if Performance Market believes that your use of the Website and/or any Content you provide (a) violate (i) these Terms and Conditions, (ii) the rights of Performance Market, its affiliates and subsidiaries, or another user of the Website, or (iii) any law or regulation, or are otherwise objectionable or inappropriate or (b) constitute fraudulent activity of any nature. Performance Market is not required to provide any refund to you if you are terminated as an authorized user of the Website because, in Performance Market’s sole discretion, you have violated these Terms and Conditions.

17.        Listing Conditions

17.1 When listing an item for sale on the website, you agree to comply with Performance Market Inc.’s policies and agree that:

  • You are responsible for the accuracy and content of the listing and item offered.
  • Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Performance Market Inc. can’t guarantee exact listing durations.
  • Your fixed-price listings currently renew automatically every 30 days, based on the listing terms at that time, until the quantities sell out or until you cancel the listing. Your fixed-price listings may automatically renew every calendar month, based on the listing terms at the time, until all quantities sell, or the listing is ended by you or Performance Market Inc., in its sole discretion.
  • The content you provide complies with all our listing policies.
  • Content that violates any of Performance Market Privacy Policy may be modified, obfuscated or deleted at Performance Market’s
  • We may revise product data associated with listings to supplement, remove, or correct information. Performance Market Inc. reserves the right at any time and without notice to update product information and to correct and/or remove product-related errors, inaccuracies, or omissions.
  • We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
    • buyer’s location, search query, browsing website, and history;
    • item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the member query;
    • seller’s history, including listing practices, Detailed Seller Ratings, Performance Market Inc. policy compliance, feedback, and defect rate; and
    • number of listings matching the buyer’s query.
  • To drive a positive member experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.
  • Some advanced listing upgrades will only be visible on certain services.
  • Performance Market Inc.’s policies may also affect whether your listing appears as a duplicate in search results.
  • Metatags and URL links that are included in a listing may be removed or altered to not affect third-party search engine results.
  • We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results will vary for individual listings. You agree that we may display the sales and performance history of your individual listings to other sellers.
  • For items listed in certain categories, subject to certain programs, and/or offered or sold at certain price points, Performance Market Inc. may require the use of certain payment methods, subject to our policies. For example, for inventory covered by authentication services, buyer, and sellers may be subject to escrow, screening, shipping, and/or payment handling requirements.
  • You will not sell and will promptly remove all listings for any product recalled by a manufacturer or governmental agency if the sale of the product is prohibited by law or regulation or the product poses a health or safety hazard as specified by any governmental agency. Performance Market Inc. has no responsibility or liability for the safety or performance of any product that you list or sell through the services, including any product that is subject to a recall. You are solely responsible for any non-conformity or defect in, or compliance with any public or private recall of any product you list or sell through the services. All items procured before being declared hazardous in Ontario, Canada, a returnable for a refund, provided they are brand new and are still in the original packaging.
  • Performance Market Inc. will not be held responsible for product revision changes.
  • Performance Market Inc. ships items in the condition they were received from the original manufacturer/distributor. Performance Market Inc. does not conduct product testing before shipping any merchandise.

18.   Placing an order

18.1 To place an order with Performance Market Inc., you must provide us with your name, shipping address, billing address, telephone number, and payment information, such as your credit card number, billing address, credit card expiration date, and credit card security code. You represent and warrant to Performance Market Inc. that the credit card information or other payment method information you provide to Performance Market Inc. is accurate and complete; and you are authorized to use such credit card or payment method for the purchase.

18.2 Terms of payment are within our sole discretion, and we must receive payment before our acceptance of an order. Payment methods may vary by location. Depending on your location, we may accept a variety of payments.

18.3 Your order is an offer to Performance Market Inc. to buy the products and services listed. We will send you an email containing the receipt of your order and a sales order number, this does not constitute acceptance of your order, or confirmation of our offer to sell. An order is not binding on Performance Market Inc. until it is accepted, and payment has been received. Once Performance Market Inc. has issued an invoice to you, then a contract will be formed.

18.4 Each purchase order that Performance Market, or any of their respective subsidiaries (“Buyer”), issues (each, an “Order”) is Buyer’s offer to purchase products (the “Products”) or services (the “Services”) from Performance Market. When Performance Market accepts an Order by issuing an invoice, the Order will become a binding contract together with these Terms and Conditions and any other documents specifically incorporated into the Order or separately agreed to in writing (the Agreement).

18.5 Performance Market Inc. may accept, decline, or limit your order for any reason at any time after receiving your order. You will not be charged for any order that has been declined or limited, a credit will be issued to your account. Parts of your order may be processed and shipped separately. You consent to receive your invoices electronically.

19. Pre-orders

19.1 Click the “pre-order” button in the item description and checkout as you normally would. A sales order number will be issued at the order confirmation screen just as if you were placing a conventional order, but your credit/debit card will not be charged until your pre-ordered item is in stock and ready to ship. If you purchase an in-stock item with a pre-order item, you will be charged accordingly for the available product and the difference when your pre-ordered item is in stock and ready for shipment. In this instance, two sales order numbers will be issued: one for the in-stock merchandise and one for the pre-ordered merchandise. You will be kept up to date via the website and through standard order status emails to your account.

20. Backorders

20.1 We will sometimes allow you to backorder an item that is out of stock. However, these items will be clearly marked with a “backorder” button. Click the “backorder” button in the item description and checkout as you normally would. A sales order number will be issued at the order confirmation screen just as if you were placing a conventional order, but your credit/debit card will not be charged until your backordered item is in stock and ready to ship. If you purchase an in-stock item with a backorder item, you will be charged accordingly for the available product and the difference when your backordered item is in stock and ready for shipment. In this instance, two sales order numbers will be issued: one for the in-stock merchandise and one for the backordered merchandise. You will be kept up to date via the website and through standard order status emails to your account.

21. Pricing and availability

21.1 The price of a product is indicated on the order pages when you place an order. Please note that all pricing is subject to change without notice, and Performance Market Inc. reserves the right to adjust due to changing market conditions, product discontinuation, manufacturer price changes and other extenuating circumstances. Please note that changes to Performance Market-controlled prices, specifications and terms will be effective only after the effective date of the change and will not affect any dispute arising prior to the effective date of the change.

21.2 On rare occasions, an item in our catalogue may be mispriced. We will verify pricing when processing your order and before we take payment. If we have made a mistake and a product’s correct price is higher than the price on the website, we may either contact you before shipping to ask whether you want to buy the product at the correct price or cancel your order and we will notify you of such cancellation. If a product’s correct price is lower than our stated price, we will charge the lower amount and send you the product.

21.3 Performance Market Inc. may limit the number of products available for purchase. Performance Market Inc. may, in its sole discretion, at any time, for any reason, change the quantities available for purchase. We therefore encourage you to check our Website on a regular basis for information on limitations on quantities.

21.4 We list availability information for products sold by us on the Website, including on each product information page. Beyond what we say on that page or otherwise on the Website, we cannot be more specific about availability. As we process your order, we will inform you by email as soon as possible if any products you order turn out to be unavailable. Performance Market Inc. shall at its sole discretion, at any time, have the right to refuse or cancel any order for a product that is unavailable. If such an order is canceled after your credit card has been charged for the purchase, Performance Market Inc. will issue a credit to your credit card account in the amount of the charge.

22. Order status

22.1 Performance Market Inc. will keep you informed of your order status via email. All tracking information will be emailed to you once your order has shipped. You may also acquire your order status and other live updates by logging in to your account on the Website.

22.2 Once you have placed your order, you can expect your order to be processed within approximately 1-2 business days, provided the items are in stock and there are no problems with payment verification. Performance Market Inc. does not guarantee same day-shipping. Orders are not processed on Canadian holidays.

23. Technical support

23.1 Performance Market Inc. does not offer any sort of technical assistance. We cannot offer advice on compatibility of items, make product recommendations, or provide technical support or sales advice.

24. Managed Payments

24.1 A designated Performance Market Inc. entity (each, a “payments entity”) manages payments on behalf of sellers for most sales (such management described as “managed payments” or similar). Regardless of whether Performance Market Inc. or a Performance Market Inc. payments entity manages a sale, the contract for sale underlying the purchase of goods is directly concluded between seller and the buyer.

24.2 To use managed payments and continue to list and sell on Performance Market Inc., you must:

  • provide the payments entity with such information about you and/or your business to meet its compliance requirements, including those involving identity verification, anti-money laundering controls, and sanctions screening as we may require; and
  • pass such verification and screening and otherwise meet the compliance requirements of the payments entity, as determined by the payments entity; and
  • provide bank account information for a Canadian-based chequing account so that the payments entity can link such chequing account to your Performance Market Inc. account, allowing the payments entity to pay you.

24.3 In addition: The payments entity may obtain information about you from third parties to verify your identity, comply with anti-money laundering and sanctions screening obligations, and for other purposes in connection with managed payments. The payments entity may use third-party payments service providers to assist it in providing managed payments services, including companies that process payments, perform risk assessments (such as credit agencies) or compliance checks, verify identity, and validate payment methods. Performance Market Inc., the payments entity, and their affiliates may send personal data associated with you and your account to such third parties.

24.4 The payments entity may, in its sole discretion, manage payments on your behalf even if you haven’t provided all requested information, and the payments entity may withhold payouts pending receipt of such information.

24.5 If you are a buyer completing a purchase from a seller that is using managed payments: You may pay for such items using those payment methods that the payments entity makes available, and the payments entity will manage settlement to sellers. By completing purchases from sellers who use managed payments, buyers authorize the payments entity to initiate payments using the buyers’ selected payment method and collect the transaction amounts on behalf of sellers.

24.6 In certain instances, your transaction may be declined, frozen, or held for any reason including for suspected fraud, compliance with economic or trade sanctions, in connection with Performance Market Inc.’s internal risk controls or due to potential violations of any policy of Performance Market Inc. or the payments entity, or a policy of one of the payments entity’s third-party payments services providers.

24.7 Performance Market Inc., the payments entity or its affiliates may save payment information, such as credit card or debit card numbers, and card expiration dates, entered by you on Performance Market Inc. services when you make a purchase, redeem a coupon, or make any other transaction on Performance Market Inc. services where card information is entered. Such stored payment information may be used as your default payment method for future transactions on Performance Market Inc. Website. At any time, you can update your card information or enter new card information, at which point the new card information shall be stored as your default payment method. You are responsible for maintaining the accuracy of information we have on file, and you consent to Performance Market Inc. updating such stored information from time to time based on information provided by you, your bank, or other payments services providers. You will only provide information about payment methods that you are authorized to use.

24.8 You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of managed payments. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the payments entity has no control over, or responsibility or liability for, such fees or actions.

25.   Purchase Conditions

25.1 When buying an item on Performance Market Inc. Services, you agree to the Rules and policies for buyers and that:

  • You are responsible for reading the full item listing before making a bid or commitment to buy; and
  • You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted) and an invoice is issued.

25.2 Unless otherwise stated, all fees are quoted in Canadian dollars. You must have a payment method on file when selling through Performance Market’s website and pay all fees and applicable taxes associated with our services by the payment due date. If your payment method fails or your account is past due, Performance Market Inc. payments entities may collect amounts owed in the manner described in these Terms and Conditions. In addition, you will be subject to late fees. If you receive your sales proceeds to your account, and your account is over 60 days past due, we may request that the third party deduct the amount owed from your third-party account balance. Performance Market Inc., or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Performance Market Inc. reported to a credit bureau, please contact us. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Performance Market Inc. account, you must contact the collection agency directly.

25.3 In any jurisdiction where Performance Market Inc. has an obligation to collect sales taxes on sales you make using Performance Market Inc. services, we may collect such sales taxes from you via the payment method on file under the terms of the Billing Agreement or via any other means available to us.

25.4 Selling fees don’t purchase exclusive rights to item exposure on Performance Market Inc., whether on a web page, mobile app, or otherwise. We may display third-party advertisements (including links and references thereto) or other content in any part of our services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.

26. Fees and Taxes

26.1 The fees we charge for using our Services are listed on our Website. We may change our selling fees from time to time by posting or sending you a notice of the changes on the Performance Market Inc. website 30 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.

26.2 All items shipped to destinations in Canada are subject to Canadian Goods and Services Tax (“GST”) at 5%. In addition, the following Harmonized Sales Tax (“HST”), or Provincial Sales Tax (“PST”) might apply, depending on the item and the destination of the shipment:

  • New Brunswick, Newfoundland and Labrador, Nova Scotia, and Prince Edward Island: HST at 15% (including GST portion)
  • British Columbia: PST at 7%
  • Manitoba: Retail Sales Tax (“RST”) at 8%
  • Ontario: HST at 13% (including GST portion)
  • Quebec: Quebec Sales Tax (“QST”) at 9.975%
  • Saskatchewan: PST at 6%

26.3 Performance Market Inc. charges GST and HST, PST, RST, or QST, if applicable, on all sales as required by law.

26.4 When ordering products from Performance Market Inc. for delivery from outside of your jurisdiction, you may be subject to import duties and taxes, which are levied once the package reaches the specified destination. Any additional charges for customs clearance must be borne by you; we have no control over these charges. Contact your local customs office for further information. Additionally, please note that when ordering from Performance Market Inc., you are considered the importer of record and must comply with all laws and regulations of the country in which you are receiving the products. Your privacy is important to us, and we would like our customers to be aware that cross-border deliveries are subject to opening and inspection by customs authorities.

26.5 When ordering from Performance Market, you’re responsible for assuring the product can be lawfully imported to the destination country. Customs policies vary widely from country to country; you should contact your local customs office for more information. When customs clearance procedures are required, it can cause delays beyond our original delivery estimates.

27. Shipping

27.1 Your total cost for the purchase of any product will include the shipping and handling charges shown on your Performance Market Inc. invoice. Your original shipping fees are non-refundable in the case of a returned product. Those fees are paid for the services provided by and to the original carrier, and will not be refunded to you if your item is returned for a refund to Performance Market Inc.

27.2 Some of the products we sell in Canada are shipped from local (Canadian) suppliers. These suppliers may charge us additional amounts and fees for these products, in which case we recover these charges through the handling fee on your invoice. The amount of these additional charges from our local suppliers depends on many factors, including the destination of the shipment, the type of item purchased and the location of our local suppliers’ facilities. You own title to the product from the point of purchase, so the carrier is acting as agent of the purchaser, not the seller.

27.3 Performance Market Inc. will advise you of estimated shipping dates, but Performance Market Inc. will, under no circumstances, be responsible for delays in delivery, and associated damages, due to events beyond its reasonable control, including without limitation, acts of God or public enemy, acts of federal, provincial, or local government, fire, floods, civil disobedience, strikes, lockouts, and freight embargoes. We will take reasonable steps to minimize the effect of such events. In such circumstances, you may contact us to end our contract and, if we agree, we will provide a refund to you for the product(s) you have paid for but not received.

28. Returns and Cancellations

28.1 Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. For all new sellers, in listings where returns are accepted, Performance Market Inc. will set a default rule that automates the return process. Sellers may remove or customize their return preferences in their account settings within the Performance Market Inc. website.

28.2 When an item is returned, to refund the buyer, you (as seller) authorize Performance Market Inc. or Performance Market Inc. payments entities to collect the amount of the reimbursement from you. If you receive your transaction proceeds to your third-party account, you also authorize Performance Market Inc. to request that a third party remove the refund amount (in same or other currency) from your account. 

28.3 All seller cancellations of orders must be in accordance with these Terms and Conditions. If a transaction is cancelled, Performance Market Inc. may issue a refund to the buyer on your behalf. If a refund is issued to a buyer, you (as seller) authorize Performance Market Inc. to collect the amount of the refund from you or your third-party account.

29. Cancellations for buyers

29.1 Buyers generally do not have the right to cancel an order. Buyers can request to cancel an order on Performance Market Inc. within one hour after their purchase, and the seller will have three days to accept or decline the request. If the order cannot be cancelled, buyers may still be permitted to return the item if the item is eligible for return. All buyer cancellations of orders must be in accordance with these Terms.

30. Performance Market Inc. Money Back Guarantee

30.1 Most Performance Market Inc. sales go smoothly, but if there’s a problem with a purchase covered by the Performance Market Inc. Money Back Guarantee, buyers can get their money back if an item didn’t arrive, is faulty or damaged, or doesn’t match the listing. You agree to comply with the policy and permit us to make a final decision on any Performance Market Inc. Money Back Guarantee case. We may suspend the Performance Market Inc. Money Back Guarantee in whole or in part without notice if we suspect abuse or interference with the proper working of the policy.

31. Holds and Restricted Funds

31.1 To protect Performance Market Inc. from the risk of liability for your actions as a seller, Performance Market Inc. payments entities designated to provide payments services to you may restrict access to your funds as described in these Terms and Conditions.

31.2 If you receive transaction proceeds to your account, Performance Market Inc. may temporarily restrict access to funds in your account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category, transaction value, or the filing of a Performance Market Inc. Money Back Guarantee case.

32. Governing Law

32.1 These Terms will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada regardless of your domicile, residence, physical location or location from which you access our Website. Any action or proceeding arising out of or relating to our Website or these Terms and Conditions must be brought in Ontario (in either provincial or federal court, whichever has jurisdiction over the subject matter of the action or proceeding) and you irrevocably submit to the exclusive jurisdiction of, and waive any objection to, that court.

Questions. Please contact us with any questions regarding our Terms and Conditions by emailing us at info@performancemarket.ca.

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