Last updated: May 29, 2023

SuperiorPerformance Terms of Service

Your use of the SUPERIORPERFORMANCE app, (the 'App'), and our associated services, accessible through the App is subject to these 'Terms of Service' (the 'Terms,' 'Terms of Service,' or 'agreement'). The App and associated service are collectively referred to in this agreement as the 'Service'. By using the Service, you agree to be bound by, and use the Service in compliance with, these Terms of Service. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT USE THE SERVICE.

The terms 'you,' 'your,' and 'yours' refer to you, the user of the Service. The terms SUPERIORPERFORMANCE,' 'we,' 'us,' and 'our' refer to APEAK Corporation, a Washington corporation d/b/a 'SUPERIORPERFORMANCE'. This agreement exists solely between you and SUPERIORPERFORMANCE, and not with Apple, Inc. or any other third party. SUPERIORPERFORMANCE, not Apple, are solely responsible for the Service and the content thereof. Apple shall have no obligation whatsoever to furnish any maintenance or support services with respect to the Service. We may periodically make changes to these Terms of Service. It is your responsibility to review the most recent version of these Terms of Service frequently and remain informed of any changes to it. You agree that your continued use of the Service after such changes have been published to the Service shall constitute your acceptance of such revised Terms of Service.

PLEASE BE AWARE THAT THESE TERMS OF SERVICE CONTAIN AN ARBITRATION AGREEMENT GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND SUPERIORPERFORMANCE. AMONG OTHER THINGS, THE ARBITRATION AGREEMENT INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. THESE TERMS OF SERVICE ALSO INCLUDE A CLASS ACTION AND JURY TRIAL WAIVER. THESE PROVISIONS CAN BE FOUND BELOW. PLEASE READ THESE PROVISIONS CAREFULLY

Charges and Cancellation

Unless you opt for the free version of the App, you will be charged your subscription fees. You agree that we may charge to Your credit card or other payment mechanism selected by You and approved by us ('Your Account') all amounts due and owing for the Services, including taxes and service fees, set up fees, subscription fees, or any other fee or charge associated with Your Account. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for. You agree that in the event we are unable to collect the fees owed to us for the Services through Your Account, we may take any other steps it deems necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys' fees. We may change prices at any time, including changing from a free service to a paid service and charging for Services that were previously offered free of charge; provided, however, that we will provide you with prior notice and an opportunity to terminate Your Account if we change the price of a Service to which you are subscribed and will not charge you for a previously free Service unless you have been notified of the applicable fees and agreed to pay such fees.

Auto-Renewal

The Service is offered by us on a subscription basis and your subscription will automatically renew at the end of the applicable subscription term, unless you terminate your subscription in advance of renewal. You may cancel your subscription at any time. If you cancel, you will not be billed for any additional terms of service, and service will continue until the end of the current Subscription Term. If you cancel, you will not receive a refund for any service already paid for.

Proprietary Rights

SUPERIORPERFORMANCE, the SUPERIORPERFORMANCE logo and all other SUPERIORPERFORMANCE product or service marks are trademarks of Apeak Corporation. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on or in the Services are the property of their respective owners. Nothing grants you any license or right to use, alter or remove or copy such material. Your misuse of the trademarks displayed on the Services is strictly prohibited. We may enforce our trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.

COPYRIGHTS

(a) All materials (including software and content whether downloaded or not) contained in the Services are owned by us (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials. The materials may not be used except as provided for in these Terms of Service, and any other relevant terms and conditions provided to you without our prior written permission

(b) Audio or video content from us not explicitly indicated as downloadable may not be downloaded or copied.

(c) The Services are not intended for your commercial use. You must not use any part of the materials used in or on the Services for commercial purposes without obtaining a written license to do so from us. Material from the Services may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms of Service immediately and automatically terminates your right to use the Services and may subject you to legal liability. You agree not to use the Services for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the Services. Appropriate legal action may be taken for any illegal or unauthorized use of the Services.

(d) You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials in the Services. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We may enforce our intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

License to Use the Service

Subject to these Terms of Service, we grant to you a limited, personal, non-exclusive, non-transferable license to use the Service for your personal use and not for resale or further distribution. When using the Service from an iOS device, you may use the Service on any iPhone, iPad or other iOS device that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. Your right to use the Service is limited by the terms set forth in these Terms of Service.

Except for this license granted to you, we retain all right, title, and interest in and to the Service, including all related intellectual property rights. The Service is protected by applicable intellectual property laws, including United States copyright law and international treaties.

Except as otherwise explicitly provided in these Terms of Service or as may be expressly permitted by applicable law, you will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Service; (b) rent, lease, or sublicense access to the Service; nor (c) circumvent or disable any security or technological features or measures of the Service.

Access and Modifications to the Service

We do not provide you with the equipment to access the Service. You are responsible for all fees charged by third parties to access the Service (e.g., charges by internet service providers).

We reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service

We also reserve the right, in our sole discretion, to reject, refuse to post, or remove any posting by you, or to restrict, suspend, or terminate your access to the Service at any time, for any or no reason, with or without prior notice, and without liability.

We market and sell our products to adults who purchase or otherwise subscribe to our Service, which may then be used by children only at the direction and under the supervision of these adults. If you are under 13, you may not use the Service without first having a parent or legal guardian create an account for your use and agree to the terms of this these Terms of Service and our Privacy Policy.

You hereby represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a 'terrorist supporting' country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

Restrictions

You must comply with all applicable laws, including U.S. export control laws, when using the Service. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to: (a) store, copy, modify, distribute, or resell any of the information; audio, visual, and audiovisual works; or other content made available by us on the Service ('Content') or compile or collect any Content as part of a database or other work; (b) use any automated tool (e.g., robots, spiders) to use the Service or store, copy, modify, distribute, or resell any Content; (c) rent, lease, or sublicense your access to the Service to another person; (d) use the Service or Content for any purpose except for your own personal use; (e) circumvent or disable any digital rights management, usage rules, or other security features of the Service; (f) use the Service in a manner that threatens the integrity, performance, or availability of the Service; or (g) remove, alter, or obscure any proprietary notices (including copyright notices) on any portion of the Service or Content. We reserve the right to suspend or terminate your access to the Services at any time if you violate these restrictions or otherwise violate these Terms of Service.

Links and Third Party Content

The Service may contain links to third party products, services, and websites. We exercise no control over the third party products, services, and websites and we are not responsible for their performance, do not endorse them, and are not responsible or liable for any content, advertising, or other materials available through the third party products, services, and websites. We are not responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any goods or services available through the third party products, services, and websites.

Submissions

The Service may allow you and other third parties to post information to the Service. Any opinions, advice, statements, services, offers, or other information that constitutes part of the content expressed or made available by third parties on the Service are those of the respective authors or producers and not of us, or its affiliates, agents, officers, directors, shareholders, contractors or employees.

You agree that we are free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (each, a 'Submission'), without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Service and our products and services. Furthermore, by posting any Submission on the Service, submitting information to us, or in responding to questionnaires, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to display, use, perform, reproduce, modify, distribute and create derivative works of the Submission or information submitted in any media, software, or technology of any kind now existing or developed in the future. By posting or providing a Submission or information, you represent and warrant that: (i) you own all right title and interest in your Submissions or otherwise have the right to grant the license set forth herein, and (ii) the posting of your Submissions on or through the Service does not (and will not) violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay all royalties, license fees and any other monies owing any person by reason of any Submission posted by you on or through the Service.

Use Restrictions

You are solely responsible for any content and other material that you submit, publish or display on the Service or transmit to third parties.

You will not use the Service to: (a) upload, post, email, or otherwise transmit any information that contains personally identifying information, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) harm us or third parties in any way; (c) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (d) upload, post, email, or otherwise transmit any information that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (e) upload, post, email or otherwise transmit any information that infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (f) upload, post, email, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, 'junk mail,' 'spam,' 'chain letters,' 'pyramid schemes,' or any other forms of solicitation; (g) upload, post, email, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (h) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (i) intentionally or unintentionally violate any applicable local, state, national or international law or regulation; (j) 'stalk' or otherwise harass another; (k) collect or store personal data about other users. If you see content on the Service that violates these use restrictions, please contact us at support@superiorperformance.app

Disclaimer of Warranties

YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR SOLE RISK. THE SERVICE AND CONTENT ARE PROVIDED ON AN 'AS IS' AND 'AS AVAILABLE' BASIS. SUPERIORPERFORMANCE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE SERVICE AND CONTENT, AND YOU RELY ON THE SERVICE AND CONTENT AT YOUR OWN RISK. ANY MATERIAL OBTAINED THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SUPERIORPERFORMANCE OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the Service to you, and to the maximum extent permissible by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service. As between Apple and us, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty shall be our sole responsibility. Apple shall not be responsible for addressing any claims by you or any third party relating to the Service or your possession or use of the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. As between Apple and us, in the event of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights, we, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim, to the extent required by this contract or applicable law.

Limitation of Liability

TO THE MAXMIMUM EXTENT PERIMITTED BY APPLICABLE LAW, SUPERIORPERFORMANCE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF SUPERIORPERFORMANCE HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM YOUR USE OF THE SERVICE AND CONTENT. UNDER NO CIRCUMSTANCES WILL SUPERIORPERFORMANCE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICE OR CONTENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE ONE HUNDRED DOLLARS ($100). BECAUSE SOME JURISIDCTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Indemnity

You will indemnify and hold SUPERIORPERFORMANCE, and its subsidiaries, affiliates, officers, shareholders, directors, agents, successors, assigns and employees, harmless from any costs, damages, expenses, and liability caused by your use of the Service or Content, your violation of these Terms of Service, or your violation of any rights of a third party through use of the Service or Content.

Updates to the Service and Terms of Service

We may occasionally update the Service and these Terms of Service. When we do, we will revise the 'last updated' date on these Terms of Service and will send you notice of our updated Terms of Service to the email address that you provide to us. You should check the Service and these Terms of Service frequently to see recent changes. Your continued use of the Service after such changes will be subject to the then-current terms of service. This version of these Terms of Service shall supersede and replace all earlier versions.

Disputes, Class Action Waiver and Agreement to Arbitrate

Subject to the Arbitration Agreement, below, all questions concerning the construction, validity, and interpretation of this Agreement, including questions as to arbitrability of claims, and the performance of the obligations imposed by this Agreement shall be governed by the internal law of the State of Washington without giving effect to any choice of law or conflict of laws provision or rule (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Washington. In any arbitration in accordance the Arbitration Agreement, below, each claim is subject to the same limitation periods (under statutes of limitation and statutes of repose) as would be applicable to that claim if it was adjudicated in an action in a Washington superior court. Any claim which does not accrue, or for which arbitration is not commenced (by demand for arbitration or as otherwise provided under applicable rules or statutory law), within any such limitation period is barred. The parties hereto agree that the exclusive jurisdiction and venue for any action brought between the parties under this Agreement that is not subject to the Arbitration Agreement below shall be the state and federal courts sitting in King County, Washington, and each of the parties hereby agrees and submits to the exclusive jurisdiction and venue of such courts for such purpose. All parties agree that service of process upon either party in any such action or proceeding may be made by United States mail, certified, or registered, return receipt requested, postage prepaid

Subject to the terms of this Arbitration Agreement (the 'Arbitration Agreement'), you and SUPERIORPERFORMANCE agree that any dispute, claim, or disagreement arising out of or relating in any way to these Terms of Service or your use of the App, including any dispute, claim, or cause of action arising out of or related to the interpretation or application of this arbitration provision, including the enforceability, revocability, scope, or validity of this arbitration provision (each, a 'Dispute') will be resolved by binding arbitration, rather than in court, except that: (i) you and SUPERIORPERFORMANCE may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) either you or SUPERIORPERFORMANCE may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, 'Dispute' includes disputes that arose or involve facts that occurred before or after this Promotion. The full terms of this Arbitration Agreement are set forth below. Those terms include, among other things, a class action and jury trial waiver. Please read those terms carefully

1.1. Waiver of Jury Trial. YOU AND SUPERIORPERFORMANCE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SUPERIORPERFORMANCE are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

1.2. Waiver of Class and Other Non-Individualized Relief. YOU AND SUPERIORPERFORMANCE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Notwithstanding anything to the contrary in these Terms of Service, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, 'Waiver of Class and Other Non-Individualized Relief,' are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and SUPERIORPERFORMANCE agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Washington. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or SUPERIORPERFORMANCE from participating in a class-wide settlement of claims.

1.3. Rules and Forum. The App evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.

If you have a complaint with SUPERIORPERFORMANCE, you agree to first contact us through our support team to attempt to resolve any such dispute amicably. If we cannot resolve the dispute through our support team, you agree to use the Formal Complaint Process set forth below before filing any arbitration claim or small claims action. You must complete the Formal Complaint Process before filing any arbitration or small claims action. If you do not complete it, then you agree that your claim or action must be dismissed from arbitration or small claims court.

In the event that the dispute is not resolved through your contact with our support team, you agree to use our Formal Complaint Process complaint form to describe your dispute, how you would like us to resolve the complaint, and any other relevant information. The complaint form can be requested from our support team. If you prefer to send a written complaint via mail, please include as much information as possible in describing your complaint and how you would like us to resolve the complaint, including your support case number and any other relevant information to our company office. We will acknowledge receipt of your complaint form after you submit it. We will review and evaluate your complaint based on the information you have provided and information in the possession of SUPERIORPERFORMANCE. The Formal Complaint Process is completed when we respond to your complaint or forty-five (45) business days after the date we receive your complaint, whichever occurs first.

If the Formal Complaint Process described above does not resolve satisfactorily within forty-five (45) business days after receipt of your complaint form, you and us agree that either party shall have the right to finally resolve the Dispute through binding arbitration or in small claims court. The arbitration will be administered by the American Arbitration Association ('AAA'), in accordance with the Consumer Arbitration Rules (the 'AAA Rules') then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at Consumer Arbitration Rules.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the 'Request'). If you initiate the arbitration, you must provide us with a copy of your Request by email at support@superiorperformance.app or through our registered agent for service of process. The Request must include: (i) the name, telephone number, mailing address, email address of the party seeking arbitration, and the email addresses associated with the applicable App Account(s); (ii) a statement of the legal claims being asserted and the factual bases of those claims; (iii) a description of the remedy sought, including an accurate, good faith calculation of the amount in controversy in United States Dollars; (iv) a statement certifying completion of the Formal Complaint Process described above (if you are the party making the Request); and (v) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and us otherwise agree, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. In any case, you and us agree that we will not request more than three depositions per side in each arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.

You and us agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

1.4. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Washington and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

1.5. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (i) all Disputes arising out of or relating to the subsection entitled 'Waiver of Class and Other Non-Individualized Relief,' including any claim that all or part of the subsection entitled 'Waiver of Class and Other Non-Individualized Relief' is unenforceable, illegal, void or voidable, or that such subsection entitled 'Waiver of Class and Other Non-Individualized Relief' has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (ii) all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (iii) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (iv) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by the 'Limitation of Liability' section of these Terms of Service.

1.6. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or us need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Formal Complaint Process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs

General Provisions

These Terms of Service represent the entire understanding of the parties with respect to its subject matter and supersede and replace any prior terms of service for the App.

The failure of us to enforce any right or provision in these Terms of Service will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.

In the event that a court of competent jurisdiction finds any provision of these Terms of Service to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect.

Third Party Beneficiary

We and You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions set forth herein, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof.

Contacting SUPERIORPERFORMANCE

If you have any questions or concerns about the Service or these Terms of Service, please send us a thorough description by email to support@superiorperformance.app