TERMS OF USE 

UPGRADE PERFORMANCE GROUP, LLC
LAST UPDATED: April 11, 2025

UPGRADE PERFORMANCE GROUP, LLC (“US,” “WE,” OR “UPG”) IS PLEASED TO PROVIDE YOU WITH ACCESS TO OUR WEBSITE, LOCATED AT UPGPERFORMANCE.COM, AND MOBILE AND TABLET WEBSITES (COLLECTIVELY, THE “WEBSITE”), MOBILE AND TABLET APPLICATIONS (THE “APP”), PRODUCTS AND SERVICES AVAILABLE AND ACCESSIBLE VIA OUR WEBSITE AND/OR APP, ELECTRONIC SERVICES, SOCIAL NETWORKING SITES, INTERACTIVE FEATURES, SOFTWARE, TECHNOLOGY, TOOLS, CONTENT, PROMOTIONS, CONTESTS, SWEEPSTAKES, EQUIPMENT, AND ANY OTHER MATERIALS OR ANY OTHER ONLINE ACTIVITIES OR PLATFORM WE OWN OR CONTROL (COLLECTIVELY, THE “UPG SITE”).

PLEASE READ THE FOLLOWING TERMS OF USE (“TERMS OF USE”) CAREFULLY BEFORE USING THE UPG SITE. The Terms of Use are a binding legal contract between you and UPG. All users of the UPG Site agree that access to and use of the UPG Site are subject to the following terms and conditions and other applicable law. 

The health, nutrition, and fitness information provided through the UPG Site is broad in nature and in scope and may not be suitable for everyone or appropriate or relevant to your personal situation. You acknowledge that the UPG Site has been established for general informational purposes only; as such, the content on the UPG Site does not constitute solicitation or provision of medical advice. You should always seek the advice of a physician or other qualified healthcare provider for information about or the diagnosis or treatment of any health problem or disease.

THE HEALTH, NUTRITION, AND FITNESS INFORMATION PROVIDED ON THE UPG SITE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT DISEASES. For personal healthcare information and advice and before revising your health, nutrition, or fitness strategies, please consult a physician or professional healthcare advisor who is familiar with your personal circumstances. We do not guarantee that the content, services, or products available through the UPG Site are safe and proper for every individual. THE STATEMENTS MADE ABOUT SPECIFIC SERVICES AND PRODUCTS MADE AVAILABLE VIA THE UPG SITE HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION, AND INDIVIDUAL RESULTS MAY VARY. 

YOU SHOULD ALWAYS CONSULT WITH A HEALTHCARE PROFESSIONAL BEFORE  BEGINNING ANY NUTRITION PLAN OR ALTERING ANY DIETARY REGIMEN AND BEFORE BEGINNING ANY EXERCISE PROGRAM OR TRAINING PLAN, especially if you are prone to injuries, pregnant or nursing, taking any medication, or have any other unique or special medical conditions, such as food allergies or dietary restrictions. 

The information on the UPG Site is subject to change at any time and may be incomplete and/or may contain errors. While we intend to make every attempt to keep the information on the UPG Site current, we make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to or from the UPG Site. UPG and its agents and associates disclaim any liability, loss, or risk, directly or indirectly, of the application of any of the contents of the UPG Site. 

We may amend or revise these Terms of Use from time to time by posting an updated version. Your continued use of the UPG Site after we post any changes will constitute your acceptance of such changes. By accessing and using the UPG Site, you acknowledge that you have read and reviewed these Terms of Use in their entirety; you agree to these Terms of Use and UPG’s Privacy Policy; and these Terms of Use constitute binding and enforceable obligations on you. By using the UPG Site, you agree to be bound by these Terms of Use. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT USE THE UPG SITE, INCLUDING THE WEBSITE AND/OR APP.

1. BINDING EFFECT. This is a binding agreement between you and UPG. By using the UPG Site, you agree to abide by these Terms of Use, as they may be amended by UPG from time to time in its sole discretion. UPG will post a notice on the UPG Site any time these Terms of Use have been changed or otherwise updated. It is your responsibility to review these Terms of Use periodically, and if at any time you find these Terms of Use unacceptable, you must immediately leave the UPG Site and cease all use of the UPG Site. If you are accessing and using the UPG Site on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms of Use. In that case, “you” and “your” will refer to that company or other legal entity. 

2. PARENTAL CONSENT. UPG DOES NOT TARGET ANY OF ITS CONTENT TO CHILDREN UNDER 18 YEARS OF AGE. IN COMPLIANCE WITH COPPA (CHILDREN’S ONLINE PRIVACY PROTECTION ACT), IF YOU ARE UNDER AGE 18 (OR UNDER THE AGE OF MAJORITY UNDER APPLICABLE LAW), WE WILL REQUIRE PARENTAL OR GUARDIAN CONSENT BEFORE YOU MAY OBTAIN ACCESS TO THE UPG SITE. WE RESERVE THE RIGHT TO REQUEST PROOF OF IDENTITY TO VERIFY YOUR AGE AT ANY TIME. 

THE UPG SITE IS NOT INTENDED FOR ANYONE UNDER THE AGE OF 13. IF YOU ARE 13 TO 17 YEARS OF AGE, YOU MUST ACCESS AND/OR USE THE UPG SITE ONLY WITH THE PERMISSION AND INVOLVEMENT OF YOUR PARENT OR GUARDIAN.

3. ELECTRONIC COMMUNICATION. The communications between you and UPG are electronic. You consent to receive communications from UPG in an electronic form. You agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing.

4. PRIVACY POLICY. UPG respects your privacy and permits you to control the treatment of your personal information. UPG’s Privacy Policy is expressly incorporated into these Terms of Use by this reference. By using the UPG Site, you acknowledge that you have reviewed and understand UPG’s Privacy Policy and consent to the practices described in that policy.

5. ELIGIBILITY; REPRESENTATIONS AND WARRANTIES. By accessing, using, or making a purchase through the UPG Site, or registering and creating an account on the UPG Site, you represent and warrant that: (A) You are at least 18 years old and can form a binding contract with UPG, or, if you are under age 18 (or under the age of majority under applicable law), your parent or guardian has given proper consent; (B) You will keep your account information current, complete, and accurate and you will promptly update all information to keep your account and billing information complete and accurate upon any change (e.g., change of billing address, credit card number, or expiration date) (if you created a user account); and (C) You will comply with these Terms of Use and all applicable federal, state, and local laws, rules, regulations, and ordinances.

6. THE SITE DOES NOT PROVIDE MEDICAL ADVICE. The UPG Site does not constitute solicitation or provision of medical advice. Rather, the UPG Site is for informational purposes only. None of the content or materials presented or services or products offered on or through the UPG Site may be relied upon by any person for any medical, diagnostic, or treatment reasons whatsoever. Any person reviewing the content or materials presented, or using the services or products offered, should obtain specific medical advice and answers to specific medical questions by a qualified healthcare professional. The information provided here should not be used to diagnose or treat any health problem, injury, or disease. The content of the UPG Site is not intended in any way to be a substitute for professional medical advice. Those who access the UPG Site should consult their physician or other qualified healthcare provider before following any of the suggestions or making any conclusions from the UPG Site. UPG and its associates disclaim any liability, loss, or risk, directly or indirectly, of the application of any of the contents of the UPG Site.

7. NUTRITION INFORMATION. Certain content available on the UPG Site, such as nutrition plans and nutrition tracking, provide nutrition, food, caloric, and other related information designed to help you eat healthy to reach your health and wellness goals. While any nutrition information we may provide is designed to safely align with our health, nutrition, and fitness products and services, you must consult your physician before beginning any nutrition plan or altering any dietary regimen, especially if you have any unique or special medical needs or conditions, such as food allergies, dietary restrictions, or if you are pregnant or breast feeding.

8. REGISTRATION; ESTABLISHING AN ACCOUNT; YOUR ACCOUNT. If you want to use certain features of the UPG Site, or if you would like to purchase products or services through the UPG Site, you will have to create an account. You can do this via the UPG Website. Enrollment requires you to (A) indicate agreement to these Terms of Use and the Privacy Policy; (B) provide contact information and identification details; and (C) submit any other form of information, authentication, or agreement required as part of the enrollment process, in UPG’s sole discretion. It is important that you provide us with accurate, complete, and up-to-date information for your account. You agree to update such information, as necessary, to keep it accurate, complete, and up-to-date. If you do not, we may have to suspend or terminate your account. You may also be asked to provide a user name and password. You are entirely responsible for maintaining the confidentiality of your password and for restricting access to your account. You may not use the account, user name, or password of someone else at any time. You agree to notify UPG immediately of any unauthorized use of your account, user name, or password. UPG shall not be liable for any loss that you incur as a result of someone else using your password or account, either with or without your knowledge. You may be held liable for any losses incurred by UPG, its officers, managers, members, employees, consultants, agents, affiliates, and representatives, due to someone else’s use of your password or account. YOU AGREE THAT YOU ARE SOLELY AND FULLY RESPONSIBLE FOR ANY ACTIVITIES OR ACTIONS TAKEN UNDER YOUR ACCOUNT, WHETHER OR NOT YOU HAVE AUTHORIZED SUCH ACTIVITIES OR ACTIONS. 

9. PRODUCTS AND/OR SERVICES ACCESSIBLE VIA UPG SITE. In addition to any separate purchase or service agreement required by UPG for the purchase of products and/or services accessible via the UPG Site, the following terms shall apply if you decide to purchase products and/or services from UPG:

A.   Payment Information. You understand all payments must be made to UPG through UPG’s payment system. When you provide any information to UPG for any reason, such as to register for the purchase of products or services, you agree to only provide true, accurate, current, and complete information. By providing any credit card or other payment information to us, you represent that such payment information is correct and belongs to you or you have the authority to use such payment card. In the case of email, you must provide an accurate email address that is registered in your name. You are responsible for promptly updating your information with any changes, including the requirement to keep billing information current. You must promptly notify UPG if your payment card is cancelled (for example, for loss or theft). To help keep your account current and prevent interruption, you acknowledge UPG may update your payment card information on file when it is set to expire or based on updates it receives from the bank that issues your payment card. You agree that your placement of an electronic order via the Website and/or App is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required. If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card charges unless you have made a reasonable attempt at resolving the matter directly with UPG. All prices are displayed in United States Dollars unless expressly indicated otherwise.

B.   Order Processing. UPG reserves the right to refuse or cancel any order prior to delivery. Orders may also be cancelled due to typographical errors, system failures, inaccuracies in product/service/subscription pricing information or availability, or problems identified by UPG’s credit or fraud departments. UPG also may require additional verification or information before accepting an order. UPG will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after UPG processed your payment but prior to delivery, UPG will refund your payment. All purchases are also subject to applicable shipping and handling charges and sales and/or other taxes, which will be applied to Client’s order total. Taxes will be calculated based on the billing address provided. 

C.   Personal Training Services. UPG offers certain online and personal training services on a case-by-case basis, which services consist of a ninety (90) day program customized to your specific requirements (“UPG Program”). Depending on the UPG Program designed for you, your services may be billed in one installment prior to the commencement of your UPG Program, or three (3) equal monthly installments over the course of your UPG Program. You authorize UPG to charge your payment card for the services purchased, plus applicable taxes. Monthly charges will typically occur on or around the same day of the month as your initial first installment, although some charges may be delayed for business or legal reasons. The purchase price for the UPG Program is for one user. Your customized UPG Program shall only be used by you and shall not be used by any other party or parties, including your friends, siblings, spouses, etc. We reserve the right to increase, modify, or discontinue certain personal training services and associated billing procedures, at any time without notice or any liability. 

D.   Non-refundable Personal Training Services. All payments made for your UPG Program are non-refundable. You shall not be relieved of the obligation to make payments agreed to, and no deduction from or reimbursement of any payment shall be made because of your failure to participate and/or complete the UPG Program designed for you, unless such failure to complete is on the basis of death or disability and such disability somehow effects your capacity to use or enjoy the UPG Program. A physician must verify the condition. Upon cancellation for either reason, no further payments are required, and a prorated portion of any amount prepaid shall be refunded to you or your representative upon a written request made to company@upgperformance.com

E.   Credit Card Chargeback Policy. We protect the business and credit card companies, banks, and other institutions providing related services to us from fraudulent credit card chargebacks. A chargeback is fraudulent if the credit card holder disputes a legitimate charge for products the holder has purchased from a merchant. You hereby understand and agree that in the event you attempt to create a fraudulent chargeback, UPG will work with the relevant credit card company, bank, or other institution and law enforcement authorities to investigate the matter. 

F.   Reservation of Rights. UPG reserves the right to suspend or terminate your interaction with the UPG Site for any or no reason, in its sole and absolute discretion, including your access, use, or purchase of any products, goods, or services that UPG provides. 

G.   Other Terms and Conditions. UPG reserves the right to not process or cancel your order in certain circumstances. This may occur, for example, when the product or service you wish to purchase is out of stock or has been mispriced, we suspect the request is fraudulent, or in other circumstances UPG deems appropriate in its sole discretion. UPG also reserves the right, in its sole discretion, to take steps to verify your identity to process your order. UPG will either not charge you or refund the charges for orders that we do not process or cancel. Replacement of products and credits to your account for shipped merchandise claimed as not received are subject to our investigation, which may include postal-service notification. We will adjust your account at our discretion. In the event that a refund is issued, it can only be issued to the original form of payment.

H.   Title; Risk of Loss. The risk of loss and title for items purchased by you pass from UPG to you on shipment from UPG’s facility. All shipments are governed in accordance to our standard shipping terms. For shipments to you in the United States, we will ship the products FOB, UPG’s point of shipment.

I.   Product and Service Availability. We are always striving to improve the UPG Site, including our products and services. Therefore, we may revise or discontinue products or services at any time without notice or any liability. Prices and promotions are subject to change without notice. We do not warrant that information available via our UPG Site is accurate, complete, reliable, current, or error-free. The UPG Site may contain information regarding the availability of merchandise. This information can be used to estimate the likelihood that an item will be shipped immediately after you place your order. Unfortunately, UPG cannot guarantee that an item listed as “in stock” will actually ship right away, as inventory can change significantly from day-to-day. In rare cases, a product or service offering may be in stock when a customer places the order, and sold out by the time UPG attempts to process the order.

J.   Purchase or Service Agreement. The purchase of products and/or services from the UPG Site may require acceptance of a separate purchase or service agreement. The Terms of Use and Privacy Policy are incorporated into such purchase or service agreements by reference; however, in the event of any conflict between the Terms of Use and/or Privacy Policy, the purchase or service agreement shall govern the purchase of the products and/or services therein.

10. ACKNOWLEDGEMENT AND ASSUMPTION OF RISKS. You acknowledge that the UPG Site contains health, nutrition, and fitness information. You further acknowledge that participation in any fitness activity or program may require physical and mental activity and exertion and, as appropriate, use of certain equipment and machinery, all of which increase heart rate and body temperature. Such activities and programs may be strenuous and may cause physical injury, and you acknowledge that you are fully aware of the risks and hazards involved. Such activities and programs may involve risks, including but not limited to property damage, injury, disability, or even death. Serious neck and spinal injuries resulting in complete or partial paralysis, heart attack, stroke, or even death may occur. Injuries could occur to bones, joints, or muscles. Slips, falls, and unintended loss of balance could result in muscular, neurological, orthopedic, or other bodily injury. You further understand that part of the risk involved in undertaking any fitness activity or program is relative to your state of fitness or health (physical, mental, and/or emotional) and to the awareness, care, and skill in which you conduct yourself in that activity or program. You hereby voluntarily agree to use the UPG Site. Knowing the material risks and appreciating, knowing, and reasonably anticipating that other injuries are a possibility, you hereby expressly assume all of the delineated risks of injury, all other possible risk of injury, and even risk of possible death, which could occur by reason of your use of the UPG Site. By this acknowledgement and assumption of risks, it is your intention to relieve UPG and its affiliates of any and all duty to you and you assume the entire risk of any of the losses, costs, and damages that might occur during or as a result of your use of the UPG Site and/or participation in any such activities therein. 

11. REPRESENTATION OF ABILITY TO PARTICIPATE. You further represent and certify that you have no medical or dietary condition that would cause use of the UPG Site to be potentially hazardous to your health. You are aware that the results achieved through use of the UPG Site may vary from person to person, and you acknowledge that no promises or guarantees have been made as to the results associated with your use of the UPG Site. If you are required to complete a Physical Activity Readiness Questionnaire (“PAR-Q”) to purchase our products or services, you represent and certify that you accurately completed the PAR-Q, including disclosure of any prescribed medications you are taking and any exercise or diet limitations you are aware of or have been informed of by your physician. YOU SHOULD ALWAYS CONSULT WITH A HEALTHCARE PROFESSIONAL BEFORE BEGINNING ANY NUTRITION PLAN OR ALTERING ANY DIETARY REGIMEN AND BEFORE BEGINNING ANY EXERCISE PROGRAM OR TRAINING PLAN.

12. THIRD PARTY MOBILE DEVICE PROVIDERS. If you access the UPG Site using an iPhone or Android or any other third party device, you acknowledge that each of those third party mobile device providers (each, a “Mobile Device Provider”) will not be responsible for any damages arising out of the failure of a UPG Site to operate as intended. Except as otherwise stated herein, when accessing any UPG Site by or through a Mobile Device Provider, you acknowledge and agree that: (A) these Terms of Use are between you and UPG, and not with the Mobile Device Provider; (B) UPG is solely responsible for the UPG Site, and not the Mobile Device Provider; (C) the Mobile Device Provider has no obligation to furnish any maintenance or support services related to any UPG Site; (D) in the event of any failure of the UPG Site to conform to any applicable warranty, you may (i) notify the Mobile Device Provider and the Mobile Device Provider will refund the applicable purchase price for the UPG Site to you, where applicable; and (ii) to the maximum extent permitted by applicable law, the Mobile Device Provider will have no other warranty obligation whatsoever regarding the UPG Site; (E) the Mobile Device Provider is not responsible for addressing any claims you may have or any claims of any third party relating to any UPG Site or your possession, access, or use of the UPG Site, including but not limited to: (i) product liability claims; (ii) any claim that the UPG Site fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (F) in the event of any third party claim that the UPG Site or your possession, access, or use of the same infringes that third party's intellectual property rights, UPG will be responsible for the investigation, defense, settlement, and discharge of any such claim to the extent required by these Terms of Use; (G) the Mobile Device Provider and its subsidiaries are third party beneficiaries of these Terms of Use as they relate to your license to access the UPG Site, and that, upon your acceptance of these Terms of Use, the Mobile Device Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary thereof; and (H) you shall comply with all applicable third party terms of service when using the UPG Site. 

13. MOBILE NETWORKS; TEXTING. When you contact us via your mobile phone, or you sign up for our text message programs, where available, or you access any UPG Site through a mobile network, such as our App or Website, your network or roaming provider's messaging, data, and other rates and fees may apply. Not all UPG Sites may work with your network provider or device. When you sign up to receive text messages from us, you acknowledge and agree you will receive such text messages using an auto-dialer to the number you provide, and that your express consent for us to send you text messages is not a condition of purchasing any UPG Site. You are free to opt-out of receiving text messages from us at any time. 

14. USE OF SOFTWARE. UPG may make certain software available to you from the UPG Site, including the App. If you download, install, or use software from the UPG Site, access or use the UPG Site, or use any of the content available within the UPG Site, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”) are deemed to be licensed to you by UPG, for your PERSONAL, NONCOMMERCIAL USE ONLY. UPG grants you a non-exclusive, non-transferable, revocable license to access the UPG Site, to download and use the Software, and to access the content within the UPG Site according to these Terms of Use. UPG does not transfer the title or the intellectual property rights to the Software, and UPG retains full and complete title to the Software as well as all intellectual property rights therein. You may not sell, redistribute, or reproduce the Software, nor may you decompile, reverse-engineer, disassemble, or otherwise convert the Software to a human-perceivable form. All trademarks and logos are owned by UPG or its licensors and you may not copy or use them in any manner. 

15. USER CONTENT; LICENSE TO USE USER CONTENT. For purposes of these Terms of Use, content means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the UPG Site; and “User Content” means any content that users (including you) provide to be made available through the UPG Site. The UPG Site may offer you the opportunity to post User Content, via reviews, testimonials, comments, questions, photos, audio, video, and other methods. 

We do not claim ownership to your User Content; however, if you do post User Content to the UPG Site, and unless we indicate otherwise, you grant UPG a perpetual, irrevocable, non-exclusive, royalty-free, transferable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and publicly display such User Content throughout the world in any media. Further, by posting, downloading, displaying, performing, transmitting, or otherwise distributing information or other User Content to the UPG Site, you are granting UPG, its officers, managers, members, employees, consultants, agents, affiliates, and representatives a license to use User Content in connection with the operation of the Internet and mobile application related business of UPG, its officers, managers, members, employees, consultants, agents, affiliates, and representatives, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, reformat, and otherwise exploit User Content, in whole or in part, in any and all media and channels now known or hereafter devised (including in connection with the UPG Site and on third party sites and platforms including but not limited to Instagram, Facebook, Pinterest, YouTube, Google+, and Twitter, in any number of copies and without limit as to time, manner, and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. This includes without limitation our use of your User Content in connection with any marketing, advertising, promotion, product packaging, printed or digital publications, events and associated materials, television and digital commercials, videos, social media websites, or on our Website. We are not, however, obligated to use your User Content.

You will not be compensated for any User Content. You agree that UPG may publish or otherwise disclose your name in connection with your User Content. By posting User Content on the UPG Site, you warrant and represent that you own the rights to the User Content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content. 

You are solely responsible for all your User Content. You represent and warrant that neither your User Content, nor your use and provision of your User Content, nor any use of your User Content by UPG on or through the UPG Site, will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. You further represent and warrant that the User Content is accurate, that use of the User Content you supply does not violate these Terms of Use and will not cause injury to any person or entity, and that you will indemnify UPG, its officers, managers, members, employees, consultants, agents, affiliates, and representatives, for all demands, loss, liability, claims, or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Content. UPG reserves the right but not the obligation to monitor and edit or remove any activity or Content, including the User Content. UPG takes no responsibility and assumes no liability for any User Content posted by you or any third party.

You can remove your User Content by specifically deleting it. However, in certain instances some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the UPG Site. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

16. INAPPROPRIATE CONTENT. You shall not make the following types of content available. You agree not to upload, download, display, perform, transmit, or otherwise distribute any content that (A) is libelous, defamatory, obscene, pornographic, abusive, invasive of privacy, threatening, or infringing of intellectual property rights or otherwise injurious to third parties; (B) is fraudulent, false, misleading or deceptive; (C) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (D) is violent or threatening or promotes violence or actions that are threatening to any person or entity; (E) promotes illegal or harmful activities or substances; (F)‬‬‬‬‬ advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (G) advertises or otherwise solicits funds or is a solicitation for goods or services; or (H) contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings or any form of "spam". You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of User Content. UPG reserves the right (but not the obligation) to remove or edit such User Content, but does not regularly review posted User Content. Any opinions, testimonials, advice, ratings, discussions, comments and/or other User Content of any kind made by you or any user of the UPG Site are those of the respective author(s) or distributor(s) and not of UPG. UPG reserves the right to terminate your receipt, transmission, or other distribution of any such material using the UPG Site, and, if applicable, to delete any such material from its servers. UPG intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms of Use or of any applicable laws.

You understand that you may publish User Content to the UPG Site, which is a public forum and not a communication between you and your physician or healthcare provider. We ask that you protect your private health information and that of your family by not posting or publishing User Content that contains personal health information.

17. AFFILIATED AND THIRD PARTY SITES, THIRD PARTY SERVICES, AND THIRD PARTY CONTENT. UPG has no control over, and no liability for any third party websites or materials. UPG works with a number of third party partners and affiliates, whose Internet sites may be linked with the UPG Site. Because neither UPG nor the UPG Site has control over the content and performance of these third party partner and affiliate sites, UPG makes no guarantees about the accuracy, currency, content, policies, promotions, products, services, or quality of the information provided by such third party sites, and UPG assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with your use of the UPG Site, you may have access to content items (including, but not limited to websites or "social media" sites such as Instagram, Facebook, Pinterest, YouTube, Twitter, etc.) that are owned by third parties. You acknowledge and agree that UPG makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, policies, promotions, products, services, failures, actions, damages, losses, problems, or quality of this third party content. You acknowledge sole responsibility for and assume all risk arising from your use of any third party website.

Further, certain portions of the UPG Site may integrate, be integrated into, or be provided in connection with third party websites, services, content, and/or materials ("Third Party Services"). We do not review or control any Third-Party Services. We additionally make no claim or representation regarding, and accept no responsibility for, the quality, content, nature, or reliability of Third Party Services accessible from the UPG Site. There is no implied connection, endorsement, or adoption by UPG of these Third Party Services and we shall not be responsible for any content provided on or through these Third Party Services. Certain opinions, claims, advice, representations, statements, or other information, including without limitation, regarding diet, nutrition, weight-loss, fitness, and exercise information, may be made available by third parties through or in connection with the UPG Site ("Third-Party Content"). This Third Party Content belongs to the respective authors or providers of the applicable Third Party Content and these authors and providers are solely responsible for the Third Party Content they provide in relation to the UPG Site. 

UPG DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD PARTY CONTENT REGARDING ANY PORTION OF THE UPG SITE; OR (II) ADOPT, ENDORSE, OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, CLAIM, ADVICE, REPRESENTATION, OR STATEMENT MADE BY A THIRD PARTY AS PART OF ANY THIRD PARTY CONTENT. UNDER NO CIRCUMSTANCES WILL UPG BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON THIRD PARTY CONTENT POSTED ON THE UPG SITE OR TRANSMITTED TO OR BY ANY THIRD PARTY IN CONNECTION WITH THE UPG SITE, INCLUDING ITS PRODUCTS AND SERVICES.

YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE UPG SITE AND ANY TERMS, CONDITIONS, WARRANTIES, AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. UPG ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS, AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT.

18. THIRD PARTY ACCESS TO YOUR INFORMATION. Although you are entering into an agreement to disclose your information to us pursuant to these Terms of Use, we do use third party individuals and organizations to assist us, including contractors, web hosts, app developers, and others. Throughout the course of our provision of the UPG Site to you, we may delegate our authority to collect, access, use, and disseminate your information. For example, our web host stores the information that you provide us, and we may hire outside contractors to perform maintenance or assist us in securing our Website, or, our online and mobile interface provider develops and hosts a mobile App for us. It is therefore necessary that you grant the third parties we may use in the course of our business the same rights that you afford us under this Policy. For this reason, you hereby agree that every authorization that you grant to us in this Policy, you also grant to any third party that we may hire, contract, or otherwise retain the services of for the purpose of operating, maintaining, repairing, or otherwise improving or preserving the UPG Site or its underlying files or systems. You agree not to hold us liable for the actions of any of these third parties, even if we would normally be held vicariously liable for their actions, and that you must take legal action against them directly should they commit any tort or other actionable wrong against you.

19. NO WARRANTIES. YOU ACKNOWLEDGE AND AGREE THE UPG SITE, INCLUDING WITHOUT LIMITATION, ANY WEBSITES, MOBILE OR TABLET WEBSITES, MOBILE OR TABLET APPLICATIONS, PRODUCTS AND SERVICES AVAILABLE AND ACCESSIBLE VIA OUR WEBSITE, ELECTRONIC SERVICES, SOCIAL NETWORKING SITES, INTERACTIVE FEATURES, SOFTWARE, TECHNOLOGY, TOOLS, CONTENT, PROMOTIONS, CONTESTS, SWEEPSTAKES, EQUIPMENT, AND ANY OTHER MATERIALS OR ANY OTHER ONLINE ACTIVITIES OR PLATFORM WE OWN OR CONTROL ARE PROVIDED AS-IS AND AS AVAILABLE, WITH ALL FAULTS, AND WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND. 

UPG AND ITS OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, AGENTS, AFFILIATES, AND REPRESENTATIVES, HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES. UPG IS MAKING THE UPG SITE AVAILABLE “AS-IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE UPG SITE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UPG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE UPG SITE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. UPG DOES NOT WARRANT THAT THE UPG SITE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE UPG SITE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE UPG SITE IS AT YOUR SOLE RISK.

CERTAIN APPLICABLE STATE LAWS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES; THEREFORE, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NO STATEMENT OF OURS OR ANY OF OUR OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, AGENTS, AFFILIATES, AND REPRESENTATIVES, SHALL CREATE ANY WARRANTY OTHER THAN THOSE EXPRESSLY CONTAINED IN THESE TERMS.

YOU WILL NOT HOLD UPG OR ITS THIRD PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE UPG SITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE UPG SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS. 

YOU ACKNOWLEDGE THAT WE DO NOT CONTROL ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH THE UPG SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, WE ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THIRD PARTY CONTENT OR THIRD PARTY SERVICES MADE AVAILABLE BY THIRD PARTIES THROUGH OUR UPG SITE.

INDIVIDUAL RESULTS MAY VARY. RESULTS WILL DIFFER BASED UPON VARIOUS FACTORS INCLUDING WITHOUT LIMITATION, BODY TYPE, NUTRITION, EFFORT, ETC. AND NO GUARANTEES OF RESULTS ARE POSSIBLE.

20. LIMITED LIABILITY. UPG’S LIABILITY TO YOU IS LIMITED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL UPG OR ANY OF OUR OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, AGENTS, AFFILIATES, OR REPRESENTATIVES (COLLECTIVELY, THE “UPG PARTIES”) BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, LOSS OF BUSINESS, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE UPG SITE OR ANY OTHER MATERIALS, PRODUCTS, GOODS, OR SERVICES PROVIDED TO YOU BY UPG. THIS LIMITATION SHALL APPLY REGARDLESS OF WHETHER THE DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY OR FORM OF ACTION EVEN IF UPG PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS AND/OR SERVICES, OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER CONTENT, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT UPG PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. 

FURTHERMORE, YOU SPECIFICALLY ACKNOWLEDGE THAT UPG PARTIES ARE NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. UPG DISCLAIMS AND TAKES NO RESPONSIBILITY FOR ANY CONDUCT OF YOU OR ANY OTHER USER, ON OR OFF THE UPG SITE. UPG TAKES NO RESPONSIBILITY FOR ANY CONTENT THAT YOU OR ANOTHER USER OR THIRD PARTY POSTS, SENDS, OR RECEIVES THROUGH THE UPG SITE. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE UPG SITE IS ACCESSED AT YOUR OWN DISCRETION AND RISK. 

YOU WILL NOT HOLD UPG OR ITS THIRD PARTY SERVICE PROVIDERS, LICENSORS, AND SUPPLIERS, AS APPLICABLE, RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE UPG SITE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE TO ANY OF YOUR COMPUTERS OR DATA, AS THE UPG SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS, OR OTHER LIMITATIONS. 

YOU ACKNOWLEDGE THAT WE DO NOT CONTROL ANY ADVERTISEMENTS, PRODUCT DESCRIPTIONS, PRODUCTS, OR CONTENT OFFERED BY THIRD PARTIES ON OR THROUGH THE UPG SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, WE ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY, OR USEFULNESS OF THIRD PARTY CONTENT OR THIRD PARTY SERVICES MADE AVAILABLE BY THIRD PARTIES THROUGH THE UPG SITE.

YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE UPG SITE IS TO STOP USING THE SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF UPG PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO OUR PROVISION OF (OR FAILURE TO PROVIDE) PRODUCTS AND/OR SERVICES SHALL BE THE ACTUAL PRICE PAID THEREFORE BY YOU OR ONE HUNDRED DOLLARS ($100.00) IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO UPG, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN UPG AND YOU.

CERTAIN APPLICABLE STATE LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

21. INDEMNITY. YOU AGREE TO INDEMNIFY UPG FOR YOUR ACTS AND OMISSIONS. IN CONSIDERATION FOR YOUR USE OF THE UPG SITE AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOURSELF, YOUR HEIRS, EXECUTORS, AND ADMINISTRATORS, AND ANY OTHER PERSON(S) WHO MAY TAKE BY OR THROUGH YOU, HEREBY AGREE TO INDEMNIFY, DEFEND, RELEASE, FOREVER DISCHARGE, AND HOLD HARMLESS THE UPG PARTIES, FROM AND AGAINST ANY LIABILITY FOR ANY AND ALL THIRD PARTY CLAIMS, JUDGMENTS, DAMAGES, LIABILITIES, SETTLEMENTS, LOSSES, COSTS, EXPENSES, AND RECOVERIES FOR ANY AMOUNTS CLAIMED DUE, OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE UPG SITE, WHICH YOU MAY NOW OR HEREAFTER BE ENTITLED TO ASSERT, INCLUDING PENALTIES, INTEREST, AND REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS, INCLUDING BUT NOT LIMITED TO ANY DEATH, INJURY, LOSS OF ENJOYMENT, PROPERTY DAMAGE, OR OTHER HARM OR LOSS OF ANY KIND OR NATURE, ANY CLAIMS BASED ON PUBLICITY RIGHTS, INVASION OF PRIVACY, DEFAMATION, COPYRIGHT INFRINGEMENT, TRADEMARK INFRINGEMENT, OR ANY OTHER INTELLECTUAL PROPERTY RELATED CAUSES OF ACTION, OR YOUR USE OR MISUSE OF THE UPG SITE, OR YOUR OTHER ACTS OR OMISSIONS IN CONNECTION THEREWITH.

UPG will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost. This defense and indemnification obligation will survive the termination of these Terms of Use and your use of the UPG Site.

22. RELEASE. To the fullest extent permitted by applicable law, you hereby release and forever discharge UPG and the UPG Parties from, and hereby waive and relinquish, each and every past, present, and future dispute, claim, controversy, demand, right, obligation, liability, action, and cause of action of every kind and nature (including personal injuries, emotional distress, identity theft, death, and property loss and damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, (A) any interactions with, or act or omission of, or User Content provided by, other UPG Site users or (B) any third-party site, products, services, and links included on or accessed through the UPG Site.

UPG reserves the right, but has no obligation, to monitor or take action regarding disputes that you may have with other users or customers. To the extent the law permits, you release us from any claims or liability related to any content and/or User Content posted on the UPG Site and from any claims related to the conduct of any other users or customers of ours. You agree to waive California Civil Code Section 1542 (if you are a California resident), and any similar provision in any other jurisdiction (if you are a resident of such jurisdiction), which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor." 

23. ALLEGED VIOLATIONS. UPG reserves the right to terminate your use of the UPG Site. To ensure that UPG provides a high quality experience for you and for other users of the UPG Site, you agree that UPG or its representatives may access your account, if applicable, and records on a case-by-case basis to investigate complaints or allegations of abuse, infringement of third party rights, or other unauthorized uses of the UPG Site. UPG does not intend to disclose the existence or occurrence of such an investigation unless required by law, but UPG reserves the right to terminate your account, if applicable, or your access to the UPG Site immediately, with or without notice to you, and without liability to you, if UPG believes that you have violated any of the Terms of Use, furnished UPG with false or misleading information, or interfered with use of the UPG Site by others.

24. PROHIBITED USES. UPG imposes certain restrictions on your permissible use of the UPG Site. You are prohibited from violating or attempting to violate any security features of the UPG Site, including, without limitation, (A) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (B) attempting to probe, scan, or test the vulnerability of the UPG Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (C) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the UPG Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (D) using the UPG Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (E) forging any TCP/IP (i.e., Transmission Control Protocol/Internet Protocol) packet header or any part of the header information in any e-mail or in any posting using the UPG Site; or (F) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by UPG in providing the UPG Site. Any violation of system or network security may subject you to civil and/or criminal liability.

25. OWNERSHIP OF THE UPG SITE. Except as provided herein, the UPG Site (including past, present and future versions) and all content that are included in, on, or that are otherwise a part of the UPG Site (collectively, the "UPG Content") are owned, controlled or licensed by UPG.

26. COMPLIANCE WITH INTELLECTUAL PROPERTY LAWS. When accessing the UPG Site, you agree to obey the law and to respect the intellectual property rights of others. Your use of the UPG Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any information or content in violation of any third party’s copyrights, trademarks, or other intellectual property or proprietary rights. You agree to abide by laws regarding copyright ownership and use of intellectual property, and you shall be solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any User Content you provide or transmit. The burden of proving that any content does not violate any laws or third party rights rests solely with you. You further agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights or notices incorporated in or accompanying the UPG Site or UPG Content.

27. COPYRIGHT INFRINGEMENT. We respect the intellectual property of others, and we ask you to do the same. UPG has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the UPG Site. If you are a copyright owner or an owner's agent and find any content on the UPG Site that infringes upon your copyrights, you may submit a notification according to the Digital Millennium Copyright Act (“DMCA”). UPG has adopted a policy that provides for the immediate suspension and/or termination of any UPG Site user who is found to have infringed on the rights of UPG or of a third party, or otherwise violated any intellectual property laws or regulations. UPG’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want UPG to delete, edit, or disable the material in question, you must provide UPG with all of the following information in writing: (A) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (B) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (C) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit UPG to locate the material; (D) information reasonably sufficient to permit UPG to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (E) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (F) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to UPG’s designated agent at: 

POTENTE, A Professional Law Corporation
Attn: Upgrade Performance Group, LLC DMCA Agent
4435 Eastgate Mall, Suite 100
San Diego, California 92121

28. COPYRIGHT. All UPG Content included in or made available through the UPG Site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software is the exclusive property of UPG or its content suppliers and protected by United States and international copyright laws. The compilation of all UPG Content included in or made available through the UPG Site is also the exclusive property of UPG and protected by United States and international copyright laws. Without limitation, UPG owns a copyright in the selection, coordination, arrangement, and enhancement of the UPG Content on the UPG Site. All UPG Content of the UPG Site is: Copyright © 2025 UPG. All rights reserved. 

29. TRADEMARKS. All trademarks, service marks, trade names, and trade dress, whether registered or unregistered, of UPG used on the UPG Site are trademarks or registered trademarks of UPG. UPG's trademarks and trade dress may not be used in connection with any product or service that is not UPG's, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits UPG. Without UPG’s prior written permission, you agree not to display or use, in any manner, any such marks. Without limitation of the preceding, you may not use any meta tags or any other "hidden text" utilizing our names or trademarks without our express written consent. Notwithstanding the foregoing, any goodwill associated with any use of such marks by you will insure exclusively to UPG or its respective owners. The UPG Content may not be copied, modified, reproduced, downloaded, or distributed in any way, in whole or in part, without the express prior written permission of UPG, unless and except as is expressly provided in these Terms of Use. Any unauthorized use of the UPG Content is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the UPG Site.

30. YOUR ACCESS TO THE UPG SITE. Subject to your compliance with the Terms of Use, we grant you a limited license to access and make personal use of the UPG Site. You are expressly prohibited from: (A) any resale or commercial use of the UPG Site, the UPG Content, and/or any of the other contents or materials found thereon; (B) any collection and use of any information posted on the UPG Site for any purpose other than your own personal use, including, without limitation, any purpose competitive to UPG or any commercial purpose, including marketing; (C) any downloading or copying of UPG Site or account information for any reason other than your personal use, or any use of data mining, robots or similar data gathering and extraction tools; (D) deep-linking to any portion of the UPG Site; (E) framing or utilizing framing techniques to enclose any portion of the UPG Site without express written consent by UPG; (F) using the UPG Site to access or collect any personally identifiable information, including account names, e-mail addresses or other such information for any purpose, including, without limitation, commercial purposes; (G) attempting to gain access to secured portions of the UPG Site to which you do not possess access rights; (H) using the UPG Site to generate unsolicited e-mail advertisements or spam; or (I) using any automatic or manual process to search or harvest information from the UPG Site, or interfering in any way with the proper functioning of the UPG Site.

Any unauthorized use of the UPG Site, UPG Content, and/or any other contents or materials found thereon shall immediately terminate the permission or license granted by us in these Terms of Use. Except as provided herein, nothing contained on the UPG Site should be understood as granting you a license to use any of the copyright, trademarks, service marks, or logos owned by UPG or by any third party.

31. TERMINATION. Either you or we may terminate your access to the UPG Site and to your account at any time, with or without cause, and with or without prior notice. If you want to terminate your legal agreement with UPG, you may do so by: (A) notifying UPG at company@upgperformance.com (B) closing your accounts for all of the UPG Site services and products that you use. Without limiting the foregoing, we may terminate your access if you violate these Terms of Use. Upon termination for any reason, your right to access and/or use our UPG Site will immediately cease. Upon termination, you will have no further access to, and we may delete, any information, files, or materials in or related to your account, including, without limitation, any User Content. You agree that we will have no liability whatsoever to you or any other party as a result of a termination of your access to the UPG Site and to your account and/or as a result of the deletion of any information, files, or materials in or related to your account.

Upon any termination, discontinuation, or cancellation of your account or products or services that you purchase through the UPG Site, all provisions of these Terms of Use which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions. Upon any termination of your account by you or us, you will continue to be obligated to pay all amounts owing under these Terms of Use and any separate purchase or service agreement, which are due and payable prior to such termination and related to any products or services that you purchased through the UPG Site.

32. GOVERNING LAW. You agree that all matters relating to your access to or use of the UPG Site, including all disputes, are governed by and construed in accordance with the laws of the United States and the State of California, without regards to its conflict of law provisions. You agree to submit to the exclusive jurisdiction of any State or Federal court located in the County of Los Angeles, California, United States of America, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.

33. DISPUTE RESOLUTION.

A.   Binding Arbitration. Except as specifically stated herein, any dispute or claim between you and UPG arising out of, relating in any way to, or in connection with the Terms of Use, the UPG Site, or any products, goods, services, or other materials offered or distributed through the UPG Site (“Dispute(s)”) shall be resolved exclusively by final, binding arbitration; except that you may bring a qualifying claim over a Dispute in a small claims court. By virtue of this Dispute Agreement (defined below), you and UPG are each giving up the right to go to court and have a Dispute heard by a judge or jury (except as otherwise set forth in this subsection (A) or subsection (D). The provisions of this section shall constitute your and UPG’s written agreement to arbitrate Disputes under the Federal Arbitration Act (“Dispute Agreement”). Any modification to this Dispute Agreement shall be in writing and signed by you and UPG. The arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its rules, including, without limitation, the AAA’s Supplementary Procedures for Consumer-Related Disputes, available at http://www.adr.org or by calling (800) 778.7879. The arbitrator will apply and be bound by these Terms of Use, apply applicable law and the facts, and issue a reasoned award. 

To begin an arbitration proceeding, you must comply with the limitations provision set forth in subsection (E) and send a letter requesting arbitration and describing your claim to our registered agent. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. UPG will reimburse those fees for Disputes totaling less than $10,000 unless the arbitrator determines the Dispute is frivolous. Likewise, UPG will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the Dispute is frivolous. The arbitration will be conducted based upon written submissions unless you request and/or the arbitrator determines that a telephone or in-person hearing is necessary.

Contact information for UPG’s registered agent for Disputes/Arbitration is as follows:

POTENTE, A Professional Law Corporation
ATTN: Registered Agent of Performance Upgrade Group, LLC
4435 Eastgate Mall, Suite 100 
San Diego, California 92121

B.   No Class Action Matters. We each agree that we shall bring any Dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding, or as an association. In addition, we each agree that Disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.

C.   Choice of Law and Forum; No Jury Trial. If for any reason a Dispute proceeds in court: (i) except with respect to a qualifying claim over a Dispute in a small claims court, you agree that any such Dispute may only be instituted in a state or federal court in Los Angeles County, California; (ii) you and UPG irrevocably consent and submit to the exclusive personal jurisdiction and venue of such courts for resolution of such Disputes; (iii) you and UPG agree that the Federal Arbitration Act, the AAA rules, applicable federal law and the laws of the State of California, without regard to principles of conflicts of law, will govern this Dispute Agreement and any Disputes; and (iv) you and UPG agree to waive any right to a trial by jury.

D.   Injunctive Relief. Notwithstanding anything to the contrary in this Dispute Agreement, either party may bring suit in court seeking an injunction or other equitable relief arising out of or relating to the infringement of a party’s intellectual property or any conduct that violates Section 16 (Inappropriate Conduct) or Section 24 (Prohibited Uses) of the Terms of Use.

E.   Time Limitations. If either party wants to assert a Dispute against the other party, the party with a Dispute must institute arbitration within one (1) year from the date the Dispute arose. Absent commencing the arbitration within one (1) year from the date the Dispute arose, the Dispute(s) will be forever barred.

F.   Severability. With the exception of subsection (B) above, if any part of this section is ruled to be unenforceable, then the balance of this section shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein. If subsection (B) above is ruled to be unenforceable, then subsection (A) shall be deemed unenforceable, but the rest of this section shall remain in full effect.

34. JURY TRIAL AND CLASS ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR YOUR ACCESS AND USE OF THE UPG SITE. YOU FURTHER AGREE THAT ANY AND ALL DISPUTES OR CONTROVERSIES BETWEEN YOU AND UPG SHALL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND SHALL NOT BE CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES. YOUR WAIVER OF THE RIGHT TO BRING ANY DISPUTE AS A CLASS ACTION SHALL NOT BE DEEMED UNENFORCEABLE EVEN IF THE GOVERNING STATE LAW WOULD OTHERWISE PERMIT THE ACTION TO BE FILED AND PROSECUTED AS A CLASS ACTION.

35. SEVERABILITY; WAIVER. If any provision of these Terms of Use, or the application thereof to any person, place, or circumstance, will be held by a court of competent jurisdiction to be invalid, void, or otherwise unenforceable, such provision will be enforced to the maximum extent possible, or, if incapable of such enforcement, will be deemed to be deleted from these Terms of Use, and, provided that the fundamental terms and conditions of these Terms of Use remain legal and enforceable, the remainder of these Terms of Use and such provisions as applied to other persons, places, and circumstances will remain in full force and effect. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default, nor will any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

36. INTERNATIONAL USE. We control and operate the UPG Site from our offices in the State of Delaware, United States of America, and all information is processed within the United States. We do not represent that materials on the UPG Site are appropriate or available for use in other locations. Those who choose to access the UPG Site from outside the United States do so voluntarily and are responsible for compliance with their local laws.

37. CALIFORNIA USERS – CONSUMER RIGHTS NOTICE. Under California Civil Code Section 1789.3, users of the UPG Site from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. 

You may also contact us in writing regarding any inquiries, questions about pricing, or complaints by mail at Upgrade Performance Group, LLC Attn: Website Administrator, 7733 Lexington Avenue West Hollywood, California, U.S.A.; by email at company@upgperformance.com.

38. TRADE SANCTION LAWS AND REGULATIONS. You understand and acknowledge that UPG is required to follow applicable trade sanctions laws and regulations in all jurisdictions where it conducts business, including the general prohibition on engaging with certain governments, entities, groups, or individuals, often referred to as Specially Designated Nationals (“SDNs”), blocked persons, and/or denied party(ies), that are suspected to, or have, engaged in, or otherwise supported, terrorism, narcotics trafficking, or other identified nefarious activities. You 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 that you are not listed on any U.S. government list of prohibited or restricted parties.

39. MODIFICATIONS. UPG may, in its sole discretion and without prior notice, (A) revise these Terms of Use; (B) modify the UPG Site; or (C) discontinue the UPG Site at any time. UPG shall post any revision to these Terms of Use to the UPG Site, and the revision shall be effective immediately on such posting. We will also revise the “Last Updated” date found at the beginning of this Terms of Use when we post changes to it. You agree to review these Terms of Use and other online policies posted on the UPG Site periodically to be aware of any revisions. You agree that, by continuing to use or access the UPG Site following notice of any revision, you shall abide by any such revision. These Terms of Use were last modified as of the date “Last Updated”, above.

40. ENTIRE AGREEMENT. This is the entire agreement between us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between us with respect to such subject matter. These Terms of Use are not assignable, transferable, or sublicenseable by you except with our prior written consent. Any heading, caption, or section title contained in these Terms of Use is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. In the event of any conflict between these Terms of Use and any other UPG terms and conditions, the terms of these Terms of Use shall govern. If you have any questions or comments regarding these Terms of Use, please contact us at company@upgperformance.com

41. LANGUAGE. It is the express intent of the parties that these Terms of Use and all related documents have been written in English.

42. FEEDBACK. We welcome feedback, comments, and suggestions for improvements to the UPG Site (“Feedback”). You can submit Feedback by emailing us at company@upgperformance.com. If you provide us any Feedback, you agree that we may use, copy, modify, create derivative works of, and otherwise exploit the Feedback for any purpose.

43. ACKNOWLEDGEMENT. BY ACCESSING THE UPG SITE, INCLUDING BY USING ANY SERVICES OR ORDERING ANY PRODUCTS OR PARTICIPATING IN ANY ACTIVITY OFFERED THROUGH THE UPG SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.