Terms of Service

BINDING AGREEMENT

The Center Brands LLC d/b/a PHLUR (“PHLUR”, “we”, “us” or “our”) operates this Site. These Terms of Use (“Terms of Use”), and any documents referred to herein, set out the terms and conditions on which you are permitted to use the website for PHLUR at www.Phlur.com, including the e-commerce service provided by Shopify (the “Site”). BY USING THE SITE, YOU AGREE TO BE BOUND BY, AND COMPLY WITH, THESE TERMS OF USE. IF YOU DO NOT AGREE, YOU SHOULD NOT USE OUR SITE.

CHANGES TO THE TERMS OF USE

Phlur reserves the right to change or modify the Terms of Use from time to time at any time, without notice (other than updating this Site), and in its sole discretion. Phlur will post a new version of the Terms of Use on this Site and update the date set forth above. Unless otherwise provided, any changes or modifications to the Terms of Use will be effective upon posting of the revisions.

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.

OUR INFORMATION

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

Our online store is hosted by Shopify, Inc. They provide us with the online e-commerce platform that allows us to sell our products to you. Any new features or tools which are added to the current store shall also be subject to Shopify’s Terms of Use. You can review the most current version of the Shopify’s Terms of Use at any timehttps://www.shopify.com/legal/terms.

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 support@phlur.com. 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.

MEMBERSHIP TERMS & CONDITIONS

Part of the Services may include access to “Membership,” a members-only offering that provides exclusive benefits for an annual price (the “Membership”). For more information on the Membership, including current benefits, pricing, and how to sign up for the Membership, please see our Membership FAQs: HERE

A. Fees and Renewal. You must pay the Membership fee stated in the FAQ page found HERE before receiving any benefits of the Membership. From time to time, we may change the fees for the Membership without notice to you. The Membership fee is non-refundable except as expressly set forth in these Membership Terms and Conditions. Taxes may apply on the Membership fee, and any taxes will be added to your order. If all eligible payment methods we have on file for you are declined for payment of your Membership fee, you must provide us a new eligible payment method promptly or your Membership will be canceled. If you provide us with a new eligible payment method and are successfully charged, your new Membership period will be based on the original renewal date and not the date of the successful charge. UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR MEMBERSHIP WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE MEMBERSHIP FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU. For clarity, your Membership will automatically renew for an additional period equal in length to your initial Membership period until you cancel it using the payment method you have provided (i.e., if you initially paid for an annual Membership, at the end of your initial Membership, your Membership will automatically renew for another year).

B. Changes to Membership Terms. We may in our discretion change the terms of our Membership program. Any changes will be made to this page or the FAQ page linked above and will be effective as of the date of posting. Your continued Membership after we post updated terms constitutes your acceptance of the changes. If you do not agree to the changes, your only recourse is to cancel your Membership.

C. Termination by Us. We may terminate your membership at our discretion. If we do so, we will give you a prorated refund based on the number of full months remaining in your membership subscription. However, we will not give any refund for termination related to conduct that we determine, in our discretion, violates these Terms or any applicable law, involves fraud or misuse of your Membership, or is harmful to our interests or another user. Our failure to insist upon or enforce your strict compliance with these Terms will not constitute a waiver of any of our rights.

D. Store Credits. As a benefit of your Membership, you may receive store credit, which can be used only to purchase products or services on our website. Any store credits will expire 180 days after the date you earn or receive the store credit. If you do not use your store credit before it expires, you forfeit your right to use it. Store credit may not be exchanged or redeemed for cash or gift cards.

E. Limitation of Liability. IN ADDITION TO OTHER LIMITATIONS AND EXCLUSIONS SET FORTH IN THESE TERMS, OUR TOTAL LIABILITY IN CONNECTION WITH YOUR MEMBERSHIP, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE LAST MEMBERSHIP FEE YOU PAID TO US. THIS LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND WILL SURVIVE CANCELLATION OR TERMINATION OF YOUR MEMBERSHIP.

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.

We may, but have no obligation to, monitor, edit or remove Comments that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or these Terms of Use.

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

Our Privacy Policy describes how we collect and use personal information about you through the Site. You are responsible for protecting your account log-in credentials from unauthorized access and use. You must promptly notify us by e-mail at support@phlur.com of any known or suspected unauthorized use of your account or the Site.

YOUR REPRESENTATIONS & WARRANTIES

By agreeing to these Terms of Use, you represent and warrant that (i) you are at least the age of majority in your state of residence; and (ii) that your activities are lawful in every jurisdiction where you access or use the Site. 

DISCLAIMERS

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 MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE IS ACCURATE, COMPLETE OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOUR USE OF THE SITE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND WE SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.

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

In addition to other prohibitions as set forth in the Terms of Use, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses, malware, spyware, adware, Trojan horses, worms, logic bombs, keystroke loggers or any other type of malicious code or programs that will or may be used in any way that will affect the functionality or operation of the Site, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Site, other websites, or the Internet. You are prohibited from using any robots, spiders, data mining or scraping technology or any similar third party tools for the extraction or reproduction of any data or content from our website without our prior written consent. We reserve the right to terminate your use of the Site for violating any of the prohibited uses.

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.

TO THE EXTENT THAT ANY OF THE PROVISIONS OF THIS CLAUSE (EXCLUSIONS AND LIMITATIONS OF LIABILITY) ARE UNENFORCEABLE AS OUTRIGHT EXCLUSIONS OF LIABILITY, THEY SHALL BE CONSTRUED AS LIMITATIONS ON LIABILITY, LIMITING OUR LIABILITY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY LAW. IF YOU ARE A CONSUMER, THE PROVISIONS IN THESE TERMS OF USE ARE INTENDED TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAWS OF YOUR STATE OF RESIDENCE.

FORM OF DISPUTE RESOLUTION

Any controversy, claim or dispute of whatever nature arising between a user of the Site, on the one hand, and Phlur and/or the Related Parties (as defined below), on the other, including but not limited to those arising out of or relating to the Terms of Use or any other relationship of a user of the Site and Phlur and/or the Related Parties (for purposes of this Section each is a “party”), whether such claim is based on rights, privileges or interests recognized by or based upon statute, contract, tort, common law, or otherwise (“Dispute”), shall be settled through negotiation, mediation or arbitration, as provided below.  

Negotiation

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.

Mediation 

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.

Arbitration 

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.

The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any provision of the Terms of Use, or to rule upon or grant any extension, renewal or continuance of the Terms of Use. Moreover, the arbitrator shall not have the power to award special, incidental, indirect, punitive, exemplary, or consequential damages of any kind or nature, however caused.

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.

Although the Terms of Use agreement is made and entered into between a user of the Site and Phlur, Phlur’s affiliates, owners, members, managers and employees (“Related Parties”) are intended third party beneficiaries of the Terms of Use, including this agreement to negotiate, mediate and arbitrate. The parties acknowledge that nothing in these policies is intended to create any involvement by, responsibility of, or liability of the Related Parties with respect to any dealings between an user of the Site and Phlur, and the parties further acknowledge that no provision of the  Terms of Use shall be argued by any party to constitute any waiver by the Related Parties of any defense which the Related Parties may otherwise have concerning whether they can properly be made a party to any dispute between an user of the Site and Phlur.

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 

By using the Site and agreeing to these Terms of Use, you understand and agree that you will waive your right to have any dispute or claim brought, heard or arbitrated as a class action, collective action or representative action (the “Class Action Waiver”). Notwithstanding any other clause contained in these Terms of Use or the rules of the American Arbitration Association, any claim that all or part of this Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable must be determined only by a court of competent jurisdiction and may not be determined by an arbitrator.

PERIOD OF LIMITATION 

Should you bring a claim against Phlur for any alleged act or omission of PHlur relating to or arising from these Terms of Use, such action must be brought within one year from the date of the alleged conduct giving rise to the cause of action. Failure to bring such action within such time shall bar all claims against Phlur for such act or omission. You hereby relinquish and waive all claims permissible by any other applicable statutes of limitation.

CHOICE OF LAW 

Jurisdiction and venue of any matter not subject to arbitration shall lie exclusively in Los Angeles County, State of California. The Federal Arbitration Act shall govern all matters relating to arbitration. The laws of the State of California shall govern all other matters relating to or arising from the Terms of Use or any element of your relationship with Phlur.

MISCELLANEOUS PROVISIONS 
Severability 

If any provision of these Terms of Use in its current form or as may be amended is found to be invalid or unenforceable for any reason, only the invalid portion of the provision shall be severed and the remaining terms of the Terms of Use shall remain in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.

Waiver 

The failure of Phlur to partially or fully exercise any rights or remedies that may be available to it, or the waiver of Phlur of any breach of these Terms of Use by you shall not prevent a subsequent exercise of such rights by Phlur and shall not be deemed a waiver by Phlur of any subsequent breach by you of the same or any other provision of the Terms of Use. Our rights and remedies under the Terms of Use and any other applicable agreement between you and Phlur shall be cumulative, and the exercise of any such right or remedy shall not limit our ability to exercise a different or additional right or remedy.

Release and Indemnification 

You (and also any third party for or on behalf of whom you operate an account or activity on the website) agree to indemnify, hold harmless, and defend Phlur, subsidiaries, divisions, and affiliates, and their respective officers, directors, employees, agents and affiliates from any and all claims, liabilities, damages, costs and expenses of defense, including attorneys’ fees, in any way arising from or related to your participation as a user of the Site, your violation of these Terms of Use, any defamatory or infringing content posted by you, any misrepresentation made by you, or your violation of any law or the rights of a third party (including any intellectual property, publicity, confidentiality, property or privacy right).  You will cooperate as fully required by us in the defense of any claim. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not, in any event, settle any claim without our prior written consent.

Entire Agreement 

These Terms of Use constitute the entire agreement of the parties with respect to this subject matter and your use of the Site. There are no verbal or written collateral representations, agreements or understandings relevant to this subject matter except as specifically set forth in these Terms of Use.

Headings 

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.