Last updated January 8, 2016
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE WEBSITE OR SERVICE, OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR THROUGH THE WEBSITE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS.
The Website and Service enable persons (“Users”) to access, browse and purchase products on the Website.
- Grant. Subject to your compliance with these Terms, you are granted a limited, non-exclusive, non-transferable license to access and use the Website on a computer, tablet device or mobile phone that you own or control.
- Ownership. All materials (excluding “User Submissions,” as defined below) contained on, in, or available through the Website and Service, including all information, data, text, sound, photographs, graphics, the selection and arrangement thereof, and all source code, software compilations, and other materials ("Phive Bar Content") are protected by copyright and other intellectual property laws and may not be copied or imitated in whole or in part by you, unless as explicitly stated under these Terms. All trademarks, service marks, trade dress and other intellectual property rights, including but not limited to copyrights, and all derivative works thereof associated with the Phive Bar Content, whether registered or not, are our sole property. The Phive Bar Content may also be protected as a collective work or compilation under U.S. copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws. We do not convey, through allowing access to the Website or Service, any ownership rights in the Phive Bar Content. These Terms will govern any upgrades provided by us that replace and/or supplement the original Website or Service, unless such upgrade is accompanied by separate terms in which case such updated Terms will govern.
- Limitations. You may not create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights to work around any technical limitations in the Website or Service. You may not copy (except as expressly permitted by these Terms) or publish the Website for others to copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, or modify, or create derivative works of the Website or Service, or any updates, or part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open source components included with the Website, if any). Any attempt to do so is a violation of our rights. If you breach this restriction, you may be subject to prosecution and damages. You may not use the Website or Service in any manner not specifically authorized hereunder or in any way that is against any applicable laws or regulations.
You represent and warrant that: (i) you are at least eighteen (18) years old, (ii) you are accessing the Service from the U.S., (iii) you have the right, capacity and authority to be bound by these Terms, and (iv) you will abide by all these Terms. If you place an order through the Website, you represent and warrant that you are a bona fide end-user customer and will not deliver, sell or otherwise distribute Phive Bar products or purchase Phive Bar products for commercial purposes or any other commercial benefit. If we believe, in our sole discretion, that an order would violate the terms of the preceding sentence or that a User is engaging in fraudulent or grey market activities, we may refuse such order.
To place an order through the Website, you may either (1) register and create an online account at www.phivebar.com (“Account”), or (2) place an order as a guest without creating an account via guest checkout. In order to create an Account, you are required to enter a unique user ID and password, as well as provide registration information, such as your name, phone number, street address, an active e-mail address and any additional information in accordance with the registration form prompts (“Account Data”). You agree to (a) provide accurate, current and complete information; (b) maintain and promptly update your Account Data and any other information you provide to us, to keep it accurate, current and complete; and (c) be fully responsible and liable for all use of your Account. You may not transfer your Account to another person or share it with anyone. You are responsible for all activities that occur under your Account. We will not be responsible for any issues that may result if you fail to comply with these requirements. You agree to notify us immediately of any unauthorized use of your Account or any breach of security with respect to your Account. You consent to receiving communications from us via email in connection with your use of the Service. You may opt out of these messages by following the prompts in email messages; however, doing so may impact your use of the Service.
5. Product Availability; Quantity
All orders placed through the Website are subject to availability and acceptance by Phive Bar. Phive Bar reserves the right to change the products listed on the Website without prior notice and/or may limit from time to time the quantity of Phive Bar products that may be ordered by a User in a single buying session. The product pages of the Website can provide you with information regarding products that are currently available. Products that are unavailable may display a “Coming Soon” or “Out of Stock” notice, as applicable, on the product pages. Phive Bar may modify or discontinue any products on the Website. If Phive Bar discontinues a product you have ordered, Phive Bar will give you a pro-rata refund for any product purchased but not yet shipped.
6. Prices, Shipping Costs and Taxes
All prices shown on the Website are in U.S. Dollars. Phive Bar reserves the right to modify prices and shipping costs at any time without prior notice. The price of a product and shipping costs displayed on the Website or quoted by our customer service center at the time Phive Bar provides you with confirmation of your order will be honored.
Actual shipping costs and applicable taxes will be reflected on the payment page before you place your order, and will also appear on the email you receive after placing the order (“Order Confirmation”, discussed below). Shipping costs are described in the shipping policy set forth below. Sales and use taxes will vary based on the location to which products are being shipped.
The actual sales tax associated with your purchase will be calculated at the time your order is to be shipped. Thereafter, you will receive an email advising that the order has shipped (“Shipping Confirmation”, discussed below). Please note that changes to applicable law between the date your order is placed and the date you are sent a Shipping Confirmation may result in changes to the sales tax associated with your purchase.
Phive Bar accepts payment via all major credit cards and Paypal.
When placing an order on the Website, you will need to enter your payment details on the appropriate form. All credit and debit card holders are subject to validation checks and authorization by the card issuer. If the issuer of your payment card refuses to authorize payment to Phive Bar, you will need to contact your card issuer directly to resolve this problem. Phive Bar will not be liable for any delay or non-delivery.
The amount of your purchase will be blocked on your credit card until your order is shipped. During this time, Phive Bar (or its authorized partners) will perform a credit card and anti-fraud check. By placing your order, you will be deemed to have authorized Phive Bar to perform such checks and, where Phive Bar deems necessary, to transmit or obtain information that you have provided, including your credit card number, in order to authenticate your identity, validate your credit card, obtain an initial credit card authorization and authorize a particular transaction. Thereafter, you will be sent an Order Confirmation email and your credit card will be charged the applicable purchase price. The Order Confirmation will include the product(s) you ordered, the order number, the price and your billing and shipping addresses. The Order Confirmation constitutes the acceptance of your order by Phive Bar and indicates the existence of a binding sales contract.
Phive Bar is prohibited under U.S. law from making sales of its goods to individuals or companies designated on the Office of Foreign Assets Controls Specially Designated Nationals List, or to countries sanctioned by the U.S. Any such transactions will be declined.
8. Shipping Policy
We only accept orders for delivery to addresses and P.O. boxes in the continental United States, and the District of Columbia. Please note that Phive Bar does not ship to APO/FPO addresses or hotels. When estimating package delivery time, please allow time for credit approval, address verification and order processing.
You will be asked to select a shipping method as a part of the ordering process. Shipping costs depend on several factors, including your location and the delivery service chosen. Free standard shipping will be provided to consumers in the United States that purchase three or more boxes of Phive Bar products (“Products”) in one order, although this is subject to change at any time. Shipping costs for all other orders, including those that request expedited shipping, will be provided at checkout. After Phive Bar ships your order, you will receive a Shipping Confirmation. The Shipping Confirmation will include the shipping method for your package and a tracking number.
If you have specified a recipient who is not you for delivery purposes (for example, as a gift) then you understand and accept that delivery at that address is evidence of delivery and fulfillment of the sale contract by Phive Bar in the same way as if the goods had been delivered to you.
9. Refund Policy
Given that our Products are food items, we do not accept returns. However, if you have any concerns with your purchase, please contact us within fourteen (14) days of your receipt of the Products at firstname.lastname@example.org, and we will work with you to resolve the situation satisfactorily.
10. User Submissions
The Service may enable you to submit and post content on the Website, which may include personal information, messages, reviews and ratings (“User Submission(s)”). You acknowledge and agree that you are solely responsible for any User Submission that you transmit, send or display through the Service and we are not responsible to you or any third party for any User Submission that is transmitted or shared by you or any other User. By uploading, publishing, modifying or displaying User Submissions to any part of Service, you automatically grant, and you represent and warrant that you have the right to grant, to us an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), transmit, and distribute such User Submission for any purpose in any media now known or hereafter developed.
You represent and warrant that: (i) you are either the sole and exclusive owner of all User Submissions that you make available through the Service or you have all rights, licenses, consents and releases that are necessary to grant to Phive Bar the rights in such User Submissions, as contemplated under these Terms; and (ii) neither the User Submission nor your posting, uploading, publication, submission or transmittal of the User Submission or Phive Bar’s use of the User Submission (or any portion thereof) on, through or by means of the Service will (a) infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or (b) result in the violation of any applicable law or regulation, including but not limited to any applicable privacy and data security laws and regulations. You retain sole responsibility for your individual compliance with all applicable laws.
You understand and agree that we do not verify or vouch for any such User Submission and if we determine in our sole discretion that any User Submission is inaccurate, was posted or uploaded without authorization, or otherwise does or may violate these Terms or applicable laws, we reserve the right, at any time, without prior notice and without limiting any and all other rights we may have, at law or in equity, to (a) modify, refuse, or remove the User Submission; (b) revoke the applicable User's right to use the Service; and/or (c) use any technological, legal, operational, or other means available to us to enforce the provision of these Terms. In addition, notwithstanding anything to the contrary contained in these Terms, we may take-down or delete any User Submission for any or no reason without prior notice to you and without liability.
The Website and Service are controlled and operated by Phive Bar from the United States, and are not intended to subject Phive Bar or its affiliates to the laws or jurisdiction of any state, country or territory other than that of the United States. Phive Bar does not represent or warrant that the Website or Service or any part thereof are appropriate or available for use in any jurisdiction other than the United States.
There is no charge to access and browse the Service. However, charges for Internet or telecommunication use may apply at rates that are determined by the providers of such services. In order to access and browse the Service, you are required to have a compatible computer, tablet device or mobile telephone, internet access, mobile network access, and an Android or iOS operating system. The software for the Website may be upgraded from time to time to add support for new functions and services.
13. Rules of Conduct
In connection with your use of the Service, you will not: (i) transmit or communicate any data or information that is unlawful, harmful, false, misleading, threatening, abusive, harassing, stalking, defamatory, vulgar, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (ii) upload or input to the Service any information which contains software viruses, or any computer code, files or programs designed to interrupt, destroy or limit the functionality of the Service, any computer software or hardware or telecommunications equipment; (iii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (iv) use the Service for any unlawful or unsafe purposes; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted to other Users; (vi) violate any applicable local, state, federal or international law and any regulations requirements, procedures or policies; (vii) use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Service; (viii) transmit, access or communicate any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements); (ix) monitor traffic on the Service, obtain or accumulate personal information about other Users, or collect or store personal data about other Users; (x) modify, delete or damage any information contained on the mobile device or personal computer of any other Users; (xi) infringe on the rights of any third party, including but not limited to trademark, copyright or the rights of publicity; (xii) use the Service in any manner that in our sole judgment, adversely affects the performance or function of the Service or interferes with the ability of other Users to access or utilize the Service; or (xiii) undertake any acts not expressly permitted under the Terms. You warrant and represent that you undertake to use the Service only for purposes that are in strict compliance with (a) the Terms and the license granted hereunder, and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions and you shall take no actions which would cause us to be in violation of any applicable law, ruling or regulation.
We reserve the right to suspend or cease providing the Website and/or Service, with or without notice, and we shall have no liability or responsibility to you if we do so.
15. Third Party Content
16. No Medical Advice
The Website may contain general information about nutrition, health and wellness. This information is not designed to, and does not, provide medical advice, diagnosis, treatment or services. It is not a substitute for medical or professional care, and you should not use the information in place of a visit, consultation or the advice of your physician or other healthcare provider. Never disregard professional medical advice or delay seeking it because of anything on or associated with the Website.
If you think you may be having a medical emergency, call your physician or 911 immediately.
17. Disclaimer of Warranties
THE WEBSITE AND SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION OF THE FOREGOING, WE SPECIFICALLY DISCLAIM, FOR THE AVOIDANCE OF DOUBT (ON OUR BEHALF, OUR SUBSIDIARIES AND/OR OUR AFFILIATES) ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES: (i) CONCERNING THE AVAILABILITY, ACCURACY, RELIABILITY, SECURITY, TIMELINESS, QUALITY, USEFULNESS, INTEROPERABILITY OR CONTENT OF THE WEBSITE OR SERVICE; (ii) OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE REGARDING THE WEBSITE OR SERVICE; AND (iii) REGARDING THE PROVISION OF THE SERVICE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE WEBSITE OR SERVICE, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. WE DO NOT WARRANT OR GUARANTEE THAT THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT DEFECTS IN THE WEBSITE OR SERVICE WILL BE CORRECTED. YOU ASSUME THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE WEBSITE AND SERVICE.
18. Limitation of Liability
IN NO EVENT WILL PHIVE BAR OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF INFORMATION, LOSS OF PROFITS AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE WEBSITE OR SERVICE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY OTHER SOFTWARE OR OTHER CONTENT INCLUDED AS PART OF THE WEBSITE OR SERVICE. GIVEN THAT SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY (INCLUDING OUR OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AND AFFILIATES) SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT WILL PHIVE BAR’S AGGREGATE LIABILITY (INCLUDING OUR OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AND AFFILIATES) WITH RESPECT TO THE USE OF THE WEBSITE OR SERVICE EXCEED THE PRICE PAID BY YOU WITH REGARD TO THE PARTICULAR CLAIM, OR, IF YOU HAVE NOT PAID PHIVE BAR FOR ANY PRODUCT, THE AMOUNT OF $25.00 U.S. DOLLARS.
GIVEN THAT MANY OF OUR PRODUCTS CONTAIN NUTS, SEEDS AND FRUITS, THE PRODUCTS MAY ALSO CONTAIN PIECES OF NUT SHELLS, NUT SHELL FRAGMENTS, SEED HUSKS OR PITS. IN NO EVENT WILL PHIVE BAR OR ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS BE LIABLE TO ANY PARTY FOR ANY DAMAGES OR INJURY ARISING FROM OR RELATED TO THE INCLUSION OF NUT SHELLS, NUT SHELL FRAGMENTS, SEED HUSKS, PITS OR SIMILAR ITEMS IN THE PRODUCTS.
By using the Service, you agree to defend, indemnify and hold us, our affiliates, partners, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Service or the creation, placement or transmission of any message, information, software or other materials through the Service by you or related to any violation of these Terms by you (collectively, “Indemnified Matters”). We shall control the defense of any Indemnified Matters through counsel of our choice.
20. Copyright Infringement
We respect the intellectual property rights of others, and require that people who use the Service do the same. It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act.
21. Governing Law
The Terms shall be governed by and construed under the laws of the State of California applicable to agreements made and fully performed therein. You consent to the exclusive jurisdiction and venue of the federal and state courts located in the State of California, San Diego County for any action arising out of or relating to these Terms.
22. Entire Agreement
These Terms constitute the entire agreement between you and us with respect to the use of the Website and Service, and supersede all discussions, communications, conversations and agreements concerning the subject matter hereof.
You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under these Terms. We may transfer, assign, sublicense or pledge in any manner whatsoever, any of our rights and obligations under these Terms to a subsidiary, affiliate, or successor thereof or to any third party whatsoever, without notifying you or receiving your consent.
24. Amendment to Terms
Phive Bar may update or amend these Terms from time to time. Amendments shall be effective upon posting on the Website. You are responsible for regularly reviewing these Terms. Your continued access and use of the Service following such posting constitutes your consent to be bound by any amended Terms.
Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. In the event that any provision of these Terms is inoperative or unenforceable for any reason, such provision shall be enforced to the maximum extent permitted by law and the invalidity of such provision shall not affect the enforceability and validity of remaining provisions of the Terms. No independent contractor, partnership, joint venture or employer-employee relationship is intended or created. No action, regardless of form, which arises from or is related in any way whatsoever to these Terms, may be commenced by you more than twelve (12) months after such cause of action accrues. All notices and other communications under the Terms must be in writing and will be deemed to have been duly given when actually received. You may provide notices to us via email to email@example.com or by writing to us atPhive Bar, 162 S. Rancho Santa Fe Road, Suite E-70 #550, Encinitas, CA 92024.
If you have any questions regarding these Terms or the Website or Service, please contact us at info@ phivebar.com.