Last Updated: November 2, 2016
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
- Acceptance of Terms
Certain Services may be subject to additional terms and conditions specified by us from time to time, and your use of such Services is subject to those additional terms and conditions, which are hereby incorporated into this Agreement by reference.
If you do not want to agree to the terms of this Agreement, do not access, view, or otherwise use any of the Platform.
We reserve the right to modify, supplement, or replace the terms of this Agreement at any time, effective prospectively upon posting at the Site and/or notifying you by email. When we post changes to these Terms, we will revise the “Last Updated” date at the top of these Terms. We recommend that you check the Site from time to time to inform yourself of any changes in this Agreement. If you do not want to agree to changes to this Agreement, you must immediately stop using the Platform. Your continued use of the Platform shall constitute your acceptance of and agreement to the revised Agreement.
- Termination of Your Access to the Platform
FOVE reserves the right to deny service to any person in FOVE’s sole and absolute discretion. The Platform is offered with the understanding that FOVE may terminate your access to the Platform at any time, for any reason or no reason, including, without limitation, for any violation of this Agreement. FOVE may stop offering or supporting the Platform or a portion thereof at any time.
- Order and Payment Terms
After you place an order we will review the information you provided for validity by verifying your method of payment, billing, and/or shipping address. Orders may not be accepted for delivery to certain addresses and territories based upon your location. We may contact you (via email or phone) if additional information is required to accept and process your order. In valid order information may result in delays processing your order. For Product purchases, your receipt of an order confirmation does not constitute FOVE’s acceptance of your order. Without prior notification, FOVE maintains the right to limit the Product order quantity and the right to refuse to sell Products to any customer for any reason or no reason at all. FOVE reserves the right not to sell to resellers. If your order is canceled, we will attempt to notify you using the email address you have given us with the order.
FOVE does not sell products through its Web Store for or to children, but only to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the Web Store only with involvement and consent of a parent or legal guardian.
We accept various payment methods for Product purchases through our Web Store, including Mastercard, Visa, and American Express. We will bill your payment method when you place an order for a Product through the Platform. FOVE will not fulfill any Product order without authorization validation of your purchase from your payment method.
You acknowledge and agree that any offers made available through the Platform are subject to change at any time and from time to time.
We have endeavored to be as accurate as possible in describing and displaying the colors and other features of the Products made available for purchase through the Platform; however, there is no warranty or guarantee that the colors, quality, product descriptions, or other content of the Platform is accurate, complete, reliable, current, or error-free.
We will ship the Product(s) you purchase via the shipping method of our choice, on such other terms and conditions (such as applicable shipping and handling fees) that we may disclose to you at the time of your purchase. We do not guarantee the services of any shipping service, and delivery dates and times are estimates and are not guaranteed. We will, however, use commercially reasonable efforts to dispatch the Product to you as soon as reasonably possible after you place your order. During busy times, such as holiday periods and periods of inclement weather, there may be additional processing and shipping delays. You agree to not hold FOVE liable for any shipping issues. Most package carriers have a short time frame in which to initiate claims. We recommend that you inspect your package for damage immediately upon arrival. If there is a problem, contact the delivery service immediately to resolve any problems. Unless otherwise provided by notice from FOVE, all Products are shipped F.O.B. from any place we designate the Products to leave. At our discretion, we may choose to halt, or alter, the delivery of an order, even though it is in the hands of a delivery agent or shipping company. We may do this as a customer service or in cases where we suspect fraud. You agree to pay any additional charges that may arise to do circumstances in which we take such action.
FOVE will provide replacements for Products purchased through the Platform solely in accordance with our Return Policy. Returned Products must be in new condition with the original packaging and accessories. FOVE will be responsible for the costs of returning Products that are returned pursuant to our Return Policy.
Prices and Taxes
We reserve the right to change the prices for the Products without notice. Prices for the Products do not include any applicable sales, VAT or other taxes and duties imposed with respect to the sale, delivery, or use of any Products. You acknowledge and agree that you are responsible for all such taxes unless you claim a valid exemption. If you wish to claim any exemption, you must provide FOVE with a valid, signed certificate or letter of exemption for each respective jurisdiction.
- Conditions and Restrictions of Use
Use of Platform
Subject to the terms and conditions of this Agreement, FOVE grants you a limited, revocable, non-exclusive, non-sublicensable, non-assignable license and right to access and use the Platform solely for your personal, non-commercial use. Except as expressly permitted by us in writing, you will not (directly or indirectly): (i) reproduce, redistribute, license, sell, create derivative works from, decompile, disassemble, reverse engineer, damage, attack, interfere with, or attempt to interfere with the Platform; (ii) bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Platform; (iii) use manual or automated software, devices, or other processes to “crawl” or “spider” the Site; or (iv) otherwise take any action in violation of our guidelines and policies.
Furthermore, you may not use the Platform to develop, generate, transmit, or store information that: (i) is defamatory, harmful, abusive, obscene, or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Platform; (iii) performs any unsolicited commercial communication not permitted by applicable law, regulation, or ordinance; (iv) constitutes harassment or a violation of privacy or threatens another people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation, or ordinance; (vii) makes any false, misleading, or deceptive statement or representation regarding FOVE and/or the Platform; or (viii) constitutes phishing, pharming, or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias).
FOVE reserves the right to add or remove information, content, or Services from the Site at any time in its sole discretion. Furthermore, FOVE reserves all rights not expressly granted in this Agreement, including, without limitation, title ownership, intellectual property rights, and all other rights and interest in FOVE, the Platform, the Product, and all related items.
No Violation of Laws
You agree that you will not, in connection with your use of the Platform or Products, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Platform any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy and publicity).
No Commercial Uses
You agree that you will not use the Platform for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Platform.
The Platform contains services and features that are available to or through certain mobile devices. Your carrier’s normal rates and fees apply. We do not guarantee that any or all of the Platform’s services and features work with or are accessible through all carriers or devices.
Links from the Site
The Site may contain links to websites operated by other parties. FOVE provides these links to other websites as a convenience, and use of these websites is at your own risk. The linked websites are not under the control of FOVE, and FOVE is not responsible for the content available on the other websites. Such links do not imply FOVE’s endorsement of information or material on any other website, and FOVE disclaims all liability with regard to your access to and use of such linked websites.
Links to the Site
Unless otherwise set forth in a written agreement between you and FOVE, you must adhere to FOVE’s linking policy as follows: (i) the appearance, position, and other aspects of the link may not be such as to damage or dilute the goodwill associated with FOVE’s and/or its licensors’ names and trademarks; (ii) the appearance, position, and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with FOVE; (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking site; and (iv) FOVE reserves the right to revoke its consent to the link at any time and in its sole discretion.
- Intellectual Property
Except for the logos, trademarks, and trade names of our third-party business partners, all logos, trademarks, and trade names used in connection with FOVE and the Products are trademarks exclusively owned by FOVE. Unauthorized use of any FOVE trademark, service mark, or logo may be a violation of applicable trademark laws.
The Platform and the content made available through the Platform are protected by U.S. and international copyright laws. You may not use, modify, reproduce, or distribute any of the content, or the design or layout of the Platform, or individual sections of the content, design, or layout of the Platform without FOVE’s express prior written permission.
- Using the Platform Outside the United States
FOVE administers and operates the Platform from the United States. Although the Platform may be accessible in many territories throughout the world, not all features, products, or services discussed, referenced, provided, or offered through or on the Platform are available to all persons or in all geographic locations, or appropriate or available for use outside the United States. FOVE reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer or feature, product, or service made available on or via the Platform is void where prohibited. This Agreement is intended to cover use of the Platform, and all related features, products, and services, by residents of the United States and is governed by United States’ laws, which may not be as comprehensive as those in your country. If you choose to access the Platform from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
The Platform is not directed toward children under 13 years of age nor does FOVE knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to FOVE.
- Disclaimer of Warranties
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. FOVE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PLATFORM. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE PLATFORM IS AT YOUR SOLE RISK. FOVE DOES NOT WARRANTY: (I) THAT YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE; (III) THAT DEFECTS WILL BE CORRECTED; OR (IV) THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states, territories, and/or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
- Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOVE, ITS AFFILIATES, LICENSORS, AND BUSINESS PARTNERS (COLLECTIVELY, THE “FOVE AFFILIATES”), DISCLAIMS ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PLATFORM AND/OR PRODUCTS, EVEN IF FOVE AND/OR THE FOVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF FOVE OR ANY OF THE FOVE AFFILIATES EXCEED THE LESSER OF (I) US $100.00 OR (II) THE AMOUNT YOU PAID US FOR PRODUCTS PURCHASED THROUGH THE PLATFORM DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO THE LIABILITY AROSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, FOVE WILL NOT BE RESPONSIBLE OR LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY LOSS, LIABILITY, EXPENSES, OR DAMAGES INCURRED IN CONNECTION WITH THE PLATFORM OR THE PURCHASE OF PRODUCTS, TO THE EXTENT CAUSED BY OR RESULTING FROM (1) YOUR ACTS, DEFAULTS, OR OMISSIONS; (2) YOUR VIOLATION OF ANY TERM, CONDITION, REPRESENTATION, OR WARRANTY CONTAINED IN THIS AGREEMENT; (3) YOUR FAILURE TO PROVIDE AN ACCURATE SHIPPING ADDRESS OR OTHER INFORMATION THAT YOU ARE ASKED TO PROVIDE IN CONNECTION WITH THE SALE OF PRODUCTS; (4) ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING THIRD PARTIES CONTRACTED BY FOVE; OR (5) NONDELIVERY, MISDELIVERY, OR LATE DELIVERY OF PRODUCTS OR PRODUCTS LOST OR DAMAGED IN SHIPMENT.
WE DO NOT IN ANY WAY EXCLUDE OR LIMIT OUR LIABILITY FOR: (A) DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR (B) FRAUD OR FRAUDULENT MISREPRESENTATION, OR EXCLUDE OR LIMIT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
Because some states, territories, and/or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states, territories, and/or jurisdictions, the liability of FOVE and the FOVE affiliates shall be limited to the fullest extent permitted by law.
To the maximum extent permitted by law, you agree to indemnify, defend, and hold FOVE and the FOVE Affiliates harmless from and against any and all claims, demands, damages, or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Platform, your negligent or intentional misuse of the Products, or any breach or alleged breach by you of this Agreement.
Governing Law; Disputes; Interpretation
This Agreement shall be governed by the laws of the State of California, United States of America, without regard to conflicts of law principles. To the extent permitted by law, the parties waive all rights to trial in any action or proceeding instituted in connection with this Agreement, the Platform, the Products, and/or FOVE. The parties agree that all controversies or claims arising out of or relating to this Agreement, the Platform, the Products, and/or FOVE shall be resolved by confidential, binding arbitration in accordance with the Optional Expedited Arbitration Procedures of JAMS, Inc. and any judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in the English language, in San Francisco County, California. If any provision of this Agreement or the application of any such provision to any person or circumstances shall be declared to be invalid, unenforceable, or void, such decision shall not have the effect of invalidating or voiding the remainder of the Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is valid, legal, and enforceable so as to effectuate the original intent to the extent possible. Headings are for convenience only and shall not be used to construe the terms of this Agreement.
Class Action/Jury Trial Waiver
WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND FOVE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
No Injunctive Relief
In no event shall you seek or be entitled to rescission, injunctive, or other equitable relief or to enjoin or restrain the operation of the Platform, exploitation or other materials in connection therewith, or the sale, distribution, and other exploitation of the Products.
This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors, heirs, executors, administrators, and permitted assigns. You may not assign or delegate this Agreement or any of the rights hereunder without FOVE’s prior written consent. Any purported assignment or delegation shall be ineffective. FOVE may freely assign or delegate all rights and obligations under this Agreement, full or partially, without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, FOVE with any third party that assumes our rights and obligations under this Agreement.
The provider of the Platform is FOVE, Inc., [address], [phone], [email]. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.