***THIS AGREEMENT CONTAINS A BINDING MUTUAL ARBITRATION PROVISION (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND AGREE TO BINDING ARBITRATION***
Last Updated and Effective As Of: January 29, 2021
YOUR CONTINUED USE OF THE SITE FOLLOWING POSTING OF ANY CHANGES OR MODIFICATIONS CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS AND IF YOU DO NOT AGREE WITH THESE CHANGES OR MODIFICATIONS, YOU MUST IMMEDIATELY CEASE USING THE SITE.
Phlur is a Delaware limited liability company. Our address is www.phlur.com, 9200 W. Sunset Blvd, STE 201, West Hollywood CA, 90069. Phlur’s Legal Department may be contacted at: Phlur.com, Attn: Legal Department, 9200 W. Sunset Blvd. STE 201, West Hollywood CA, 90069. All legal notices shall be sent by registered or certified mail to this address.
OUR ONLINE STORE IS HOSTED BY SHOPIFY
PRODUCT LISTINGS & PURCHASES
In addition to any other terms relating to product purchases, returns, trade-ins, and shipping and handling on the Site, the following terms apply when you purchase a product on the Site:
A. All prices are shown in U.S. dollars. Taxes, shipping and handling charges are additional. All prices and taxes are subject to change or adjustment without notice. Phlur reserves its right to expire or modify any promotion at any time. You are responsible for paying all costs associated with your purchase, and for providing accurate and current payment information.
B. You agree to pay the shipping and any handling charges shown on the Site when your order is placed. We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice. Any shipping or handling charges may or may not reflect actual costs. All orders are shipment contracts, not destination contracts. Any shipping times shown on the Site are estimates only – actual delivery dates may vary. You are solely responsible for providing all information necessary for us to ship purchased products to you.
C. All items are subject to availability and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue products or services without notice, even if you have already placed your order. Certain products may be available exclusively online through the Site. These products may have limited quantities and are subject to return or exchange only according to our Return Policy.
D. We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. We reserve the right to cancel orders at our discretion if we believe that a customer violates applicable law or acts in a way that is harmful to our interests.
E. As part of our order processing procedures, we screen all received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If such is the case, we may reject your order or our Customer Service department may call you at the phone number you provided (or use your email address) to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.
F. Promo codes can be specific to dates, products or minimum total amount. You cannot combine any promotional offers codes and sales with any other offers. Limit one promo code per order. Promo codes and promotions cannot be used toward gift card purchases. Promo codes cannot be used for any past purchases, are non-transferable, and are non-refundable. For questions or assistance with a promo code please contact Customer Service via email at firstname.lastname@example.org. All promotional codes are subject to change at any time.
G. NOTWITHSTANDING THE FOREGOING, NO STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS.
PRODUCTS LISTED ON THE SITE ARE OFFERED AND SOLD “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. We do not warrant that any product, description, photograph, pricing, or other information is accurate, complete, reliable, current or error-free.
THIRD PARTY SITES
Certain content and products and services available via our Site may include materials from third parties.
Third party links on this Site may direct you to third party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third party materials or websites, or for any other materials, products, or services of third parties, nor are we responsible for any data-processing activities carried out by any third party website.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party websites. Please review carefully the third party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third party products should be directed to the third party.
USER COMMENTS, FEEDBACK OTHER SUBMISSIONS
If you send certain submissions (for example product reviews, blog comments and contest entries) or you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any Comments that you forward to us. You further grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license under any and all rights in and to the Comments to use, reproduce, distribute, create derivative works of, adapt, display, perform, and otherwise exploit, and to make, have made, sell, offer to sell, and import any products and services incorporating or based on, Comments in any manner. We are and shall be under no obligation to: (1) maintain any Comments in confidence; (2) pay compensation for any Comments; or (3) respond to any Comments.
You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your Comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Site. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. We take no responsibility and assume no liability for any Comments posted by you or any third party.
YOUR PRIVACY; PROTECTION OF ACCOUNT CREDENTIALS
YOUR REPRESENTATIONS & WARRANTIES
THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: THE SITE CONTENT; USER CONTENT; OR SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO THE SITE.
IN ADDITION, WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
WE DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR-FREE, TYPO-FREE, AVAILABLE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES.
WE DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ACTION OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
PROHIBITED USES OF THE SITE & ITS CONTENT
PERMITTED USE OF MATERIALS ON OUR SITE
The content on our Site is provided for your personal, private and non-commercial use only. You may print or share the content from our Site for lawful personal, private and non-commercial purposes, and you may also make others within your organization aware of the content on our Site. You may not otherwise extract, reproduce, sell, resell, exploit or distribute the content of our Site without our express prior written consent. Whenever you print, download, share or pass on content from our Site to others, you must not make any additions or deletions or otherwise modify any text from our Site, you must not alter or change any images, media or graphics from our Site in any way, you may not remove any accompanying text from such images, media or graphics, and you must ensure that all content passed on to any third party is an accurate representation of the content as it appears on our Site.
TRADEMARK & COPYRIGHT PROTECTIONS PREVENT UNAUTHORIZED USE
All material from the Site is considered property of Phlur and unauthorized use of such material is strictly prohibited. This includes any content such as graphics, hyperlinks, images, text, etc. Phlur’s trademarks, service marks, and logos and other proprietary designs ("Intellectual Property") used and displayed on the Site are considered property of Phlur. All such rights are protected by intellectual property laws around the world, and all rights are reserved.
No portion of the Site may be copied, sold, reproduced, duplicated, resold or otherwise exploited for any commercial purpose that is not expressly permitted by Phlur. There shall be no representation made on the Site that would be construed as granting, by implication or otherwise, any license or right to use any Intellectual Property displayed on the Site. Phlur’s Intellectual Property may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Phlur or its products.
EXCLUSIONS & LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, WE (INCLUDING OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS) WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE, INCLUDING DAMAGES ARISING OUT OF CHANGES TO OR TERMINATION OF THE SITE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, ACTUAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES. TO THE EXTENT PERMITTED BY LAW, THE LIMITATIONS ON THE CENTER'S LIABILITY SET FORTH HEREIN SHALL APPLY WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, OR WHETHER IN TORT, CIVIL LIABILITY BY WAY OF NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
BY AGREEING TO THESE TERMS, YOU WILLINGLY AGREE (OR, IF YOU ARE A MINOR, YOUR PARENT OR LEGAL GUARDIAN WILLINGLY AGREES) THAT YOU HAVE RELINQUISHED YOUR RIGHT TO SEEK THESE DAMAGES FROM THE CENTER AND THAT THIS IS A REASONABLE ALLOCATION OF RISK.
YOU SPECIFICALLY AGREE THAT WE SHALL NOT BE LIABLE FOR ANY CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
YOU AGREE THAT IN THE EVENT THAT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES ARISING OUT OF, OR IN CONNECTION WITH, OUR ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY US, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY US.
FORM OF DISPUTE RESOLUTION
If a Dispute arises, the parties shall first attempt in good faith to resolve it promptly by negotiation. Any of the parties involved in the Dispute may initiate negotiation by providing notice (the “Dispute Notice”) to each involved party setting forth the subject of the Dispute and the relief sought by the party providing the Dispute Notice, and designating a representative who has full authority to negotiate and settle the Dispute. Within ten (10) business days after the Dispute Notice is provided, each recipient shall respond to all other known recipients of the Dispute Notice with notice of the recipient’s position on and recommended solution to the Dispute, and designating a representative who has full authority to negotiate and settle the Dispute. Within twenty (20) business days after the Dispute Notice is provided, the representatives designated by the parties shall confer either in person at a mutually acceptable time and place or by telephone, and thereafter as often as they reasonably deem necessary to attempt to resolve the Dispute.
At any time twenty (20) business days or more after the Dispute Notice is provided, but prior to the initiation of arbitration, regardless of whether negotiations are continuing, any party may submit the Dispute to JAMS (Judicial Arbitration and Mediation Services - http://www.jamsadr.com) for mediation by providing notice of such request to all other concerned parties and providing such notice and a copy of all relevant Dispute Notices and notices responding to JAMS. In such case, the parties shall cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in promptly scheduling the mediation proceedings, and shall participate in good faith in the mediation either in person at a mutually acceptable time and place or by telephone, in accordance with the then-prevailing JAMS’s mediation procedures and this Section, which shall control.
Any Dispute not resolved in writing by negotiation or mediation shall be subject to and shall be settled exclusively by final binding arbitration before a single arbitrator in Los Angeles, California or a mutually agreeable location in accordance with the then-prevailing Consumer Arbitration Rules of the American Arbitration Association (“AAA”). No party may commence arbitration with respect to any Dispute unless that party has pursued negotiation and, if requested, mediation, provided, however, that no party shall be obligated to continue to participate in negotiation or mediation if the parties have not resolved the Dispute in writing within sixty (60) business days after the Dispute Notice was provided to any party or such longer period as may be agreed by the parties in writing. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. Notwithstanding any contrary rules promulgated by the AAA, the following shall apply to all Arbitration actions:
- The Federal Rules of Evidence shall apply in all cases;
- The parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure;
- The parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure;
- The arbitration shall occur within one hundred-twenty (120) days from the date on which the arbitrator is appointed, and shall last no more than five (5) business days;
- The parties shall be allotted equal time to present their respective cases, including cross-examinations.
All communications, whether verbal, written or electronic, in any negotiation, mediation or arbitration action shall be treated as confidential and those made in the course of negotiation or mediation, including any offer, promise or other statement, whether made by any of the parties, their agents, employees, experts, or attorneys, or by the mediator or any JAMS employee, shall also be treated as compromise and settlement negotiations for purposes of applicable rules of evidence and shall be inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in negotiation or mediation.
The costs of negotiation, mediation, and arbitration, including fees and expenses of any mediator, arbitrator, JAMS, the American Arbitration Association, or other persons independent of all parties acting with the consent of the parties to facilitate settlement, shall be shared in equal measure by the user of the Site, on the one hand, and Phlur and any Related Parties involved, on the other. The parties shall bear their own legal fees and expenses of negotiation, mediation and arbitration.
Any party may seek specific performance of this Section, and any party may seek to compel each other party to comply with the provisions of this Section by petition to a court of competent jurisdiction in the State of California. The pendency of a mediation shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction in the State of California, and the parties agree not to defend against any application for provisional relief on the ground that a mediation is pending. The prevailing party in any proceeding enforcing the provisions of this Section shall be entitled to recover from the other party the reasonable attorneys’ fees and costs incurred by the petitioning party in obtaining the requested relief. If any portion of this Section is held to be unenforceable for any reason, the remainder shall remain in full force and effect.
Nothing in this Section shall preclude any party from seeking interim or provisional relief concerning the Dispute, including a temporary restraining order, a temporary or preliminary injunction, or an order of attachment, either prior to or during negotiation, mediation or arbitration.
CLASS ACTION WAIVER
PERIOD OF LIMITATION
CHOICE OF LAW
Release and Indemnification
The headings preceding the text of the paragraphs of this Policy have been inserted solely for convenience of reference and do not affect its meaning, interpretation or effect.