Terms and Conditions
Posting Date: January 7, 2018
Effective Date: January 7, 2018
FITBOX Apparel LLC ("5PHERE”) is pleased to provide our website (www.5PHERE.com) (the “Site”) as a service to our customers. Please review the following terms which govern your use of the Site (the “Agreement”).
YOUR USE OF THE SITE CONSTITUTES YOUR AGREEMENT TO FOLLOW AND BE BOUND BY THE AGREEMENT. WE RESERVE THE RIGHT TO UPDATE OR MODIFY THIS AGREEMENT AT ANY TIME WITHOUT PRIOR NOTICE. FOR THIS REASON, WE ENCOURAGE YOU TO REVIEW THE AGREEMENT WHENEVER YOU USE THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT ACCESS OR USE THE SITE.1. Site Transactions
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. 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 we make a change to or cancel an order, we will attempt to notify you by contacting the email 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 do not authorize the purchase of commercial quantities of our merchandise.2. Right to Change Site
We reserve the right, at any time in our sole discretion, to modify, suspend or discontinue the Site or any service, content, feature, or product offered through the Site, with or without notice and/or offer opportunities to some or all users of the Site. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site, or any service, content, feature or product offered through the Site.
3. Site Content
Unless otherwise noted, the Site, and all features and materials on the Site, including text, images, illustrations, designs, icons, photographs, video clips, product names, and other content, and the copyrights, trademarks, trade dress and/or other intellectual property in such materials (collectively, the “Content”), are owned, controlled or licensed by 5PHERE.
The Site and the Content are intended solely for personal, non-commercial use. You may download or copy the Content and other downloadable materials displayed on the Site for your personal use only. No right, title or interest in any downloaded Content is transferred to you as a result of any such downloading or copying. You may not reproduce (except as noted above), publish, transmit, distribute, display, modify, create derivative works from, sell or exploit in any way any of the Content or the Site.
Unless otherwise specified, the Site and the Content are intended to promote our products and services. The Site is controlled and operated by 5PHERE from its offices located in the State of New York.
4. Product Description
We provide the most accurate information on the Site as possible. However, we do not warrant that product descriptions or other content on the Site is accurate, complete, reliable, current or error-free.
The 5PHERE products described on the Site may not be available in your region. 5PHERE does not claim that the information on the Site is appropriate to your jurisdiction or that the products described on the Site will be available for purchase in all jurisdictions.
5. Registration Obligations
You may be required to register with 5PHERE in order to access and use the Site. In doing so, you agree to provide and maintain true, accurate, and complete information about yourself. If you are under 13 years of age, you may not use or register to use the Site. If you are under the age of majority in the applicable jurisdiction, you may only use or register to use the Site with the consent of your parent or guardian.
6. Account Access and Security
You are responsible for the confidentiality and use of your account, including your username(s) and password(s). You agree not to hold 5PHERE liable for any damages of any kind resulting from your decision to disclose your username(s) or password(s) to any third party, including, but not limited to, entities that aggregate account information or website content, or persons who are or claim to be acting as your agent, proxy or advisor. If you inform 5PHERE or 5PHERE has reason to believe that the security of your account may be or has been compromised, we have the right to suspend or terminate your use of the Site.
You agree to immediately notify 5PHERE if you become aware of any loss or theft of your username(s) or password(s), or any unauthorized use of your username(s) or password(s), or of the Site.7. Personal Information Submitted Through the Site
You consent to the receipt of electronic mail from 5PHERE. You may opt out of future emails about products or services by following instructions contained in an email that you receive from us. We reserve the right, however, to email you important information relating to your account.
9. Errors, Inaccuracies, and Omissions
Occasionally there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to change or update information or cancel orders if any information on the Site is inaccurate at any time without prior notice (including after you have submitted your order) with the contract of sale.
10. User Comments, Feedback, and Other Submissions
We ask that you do not send creative ideas, suggestions, proposals, plans, or other materials for our business. If, at our request, you send certain specific submissions (e.g., customer reviews) or without a request from us you send content, comments, feedback, suggestions, questions or other communications, whether online, by email, by postal mail, or otherwise (collectively, “Comments”), you agree that 5PHERE may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any Comments that you forward to 5PHERE. 5PHERE is and shall be under no obligation:
(1) to maintain any Comments in confidence;
(2) to pay compensation for any Comments; or
(3) to respond to any Comments.
5PHERE has the right but not the obligation to monitor and revise or remove any Comments. You agree that your Comments will not violate any right of any third party, including copyright, trademark, privacy 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 email address, pretend to be someone other than yourself, or otherwise mislead 5PHERE or third parties as to the origin of any Comments. You are solely responsible for any Comments you make and their accuracy. 5PHERE takes no responsibility and assumes no liability for any Comments posted by you or any third party.
11. Online Conduct
The Site is intended to be used only for lawful purposes. You are prohibited from posting on or transmitting through the Site any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, sexually explicit, indecent, scandalous, profane, bigoted or hateful, libelous, racially, ethnically, or otherwise objectionable material of any kind, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. In addition, you may not engage in any activity on the Site that restricts or inhibits any other user from using or enjoying the Site by means of "hacking," "cracking," "spoofing," or disabling or defacing any portion of the Site.
If 5PHERE is notified of allegedly defamatory, damaging, illegal, or offensive content provided by a user, 5PHERE may investigate the allegation and determine, at its sole discretion, whether to remove or request the removal of such content from the Site. 5PHERE may disclose any content or electronic communication of any kind: (i) to satisfy any law, regulation, or government request; (ii) if such disclosure is necessary or appropriate to operate the Site; or (iii) to protect the rights or property of 5PHERE, its users or third party service providers.
5PHERE reserves the right to prohibit conduct, communication, or content that it deems, in its sole discretion, to be harmful to individual users or 5PHERE, any rights of 5PHERE or any third party, or to violate any applicable law. Notwithstanding the foregoing, neither 5PHERE nor its providers can ensure prompt removal of questionable content after online posting. Accordingly, neither 5PHERE, nor its affiliates, nor any of their officers, directors, employees, or agents, nor providers shall assume liability for any action or inaction with respect to conduct, communication, or content on the Site.
5PHERE may terminate your access, or suspend your access to all or part of the Site, without notice, for any conduct that 5PHERE, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider, or 5PHERE.
12. Prohibited Material
You may not post or transmit through the Site: advertising or commercial solicitations; promotional materials relating to websites or online services which are competitive with 5PHERE and/or the Site; software or other materials that contain so-called viruses, worms, time bombs, Trojan horses, or other harmful or disruptive components; political campaign materials; chain letters; mass mailings; spam mail; material protected by copyright, trademark or any other proprietary right; any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or in any way reproduce or circumvent the navigational structure or presentation of the Site or the Content; or posts that express or imply that any statements you make are endorsed by 5PHERE. Additionally, you may not harvest or collect information about Site visitors without their express consent.13. Monitoring
5PHERE or its representatives have the right, but not the obligation, to monitor the Content of the Site to determine compliance with this Agreement. We retain our right to and with our sole discretion, edit, refuse to post or remove any material that we find to be in violation of these conditions or that is otherwise objectionable or offensive. This same discretion applies to our right of disclosure of any material submitted to the Site and circumstances surrounding their submission to any third party in order to operate the Site properly and to protect our sponsors, our visitors, and ourselves and to comply with our legal obligations and government requests.14. Third Party Sites
The Site may contain links to other websites. If you link to another website, you will leave the Site and this Agreement will not apply to your use of, and activities on, those other websites. We encourage you to read the legal notices posted on those other websites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, those websites.
You acknowledge and agree that we have no responsibility for the accuracy or availability of information provided by websites to which you may link from the Site (“Linked Sites”). Links to Linked Sites do not constitute an endorsement by or association with us of such Linked Sites or the content, products, advertising or other materials presented on such Linked Sites. We do not author, edit, or monitor these Linked Sites. You acknowledge and agree that we are not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on such Linked Sites.15. ADA Compliance
5PHERE strives to maintain an ADA compliant website and is committed to providing an online environment that is accessible to all visitors. We recognize that accessibility and usability are not always possible in every area of the Site or for those using screen readers or other devices to assist viewing of the Site. 5PHERE along with its third party partners, have conducted, and continue to conduct ongoing accessibility reviews and tests of the Site. We have remediated and continue to remediate any issues identified during such reviews and tests. Please be aware that our efforts are ongoing as we incorporate any improvements we feel necessary to meet the changing laws, regulations and guidelines set forth by any regulating authorities.
If you have specific questions or concerns about the accessibility of the Site or need any assistance with the Site please contact us at info@5PHERE.com. If you have found an inaccessible area on the Site, please be sure to specify the specific page and provide us with any other information you may think will help us locate the area. We will make all reasonable efforts to make that page accessible to you. If such page cannot be made accessible with any available tools, we will work to make a text version available to you. If you have a need for a specific electronic format, please contact us at info@5PHERE.com. Please provide the format that you require the content to be in, the web page address of the material, and your contact information. We welcome your questions about this accessibility policy and your comments on how to improve the Site's accessibility.
16. International Use
We control and operate the Site from the United States, and all information is processed within the United States. We do not represent that materials on the Site are appropriate or available for use in other locations. You agree to comply with all applicable laws, rules and regulations in connection with your use of the Site.17. Indemnification
You agree to defend, indemnify, and hold harmless 5PHERE, its affiliates, third party service providers, and their respective directors, officers, employees, owners, licensors, licensees, and agents from and against all claims, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of a breach of this Agreement by you and/or your activities in connection with the Site or any services related to the Site. We may participate in the defense of any claim. You shall not settle any claim that affects 5PHERE without our prior written approval.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SITE IS PROVIDED BY 5PHERE ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BANDIER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE, OR THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THE SITE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, 5PHERE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ACKNOWLEDGE, BY YOUR USE OF THE SITE, THAT YOUR USE OF THE SITE IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BANDIER WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL PUNITIVE AND CONSEQUENTIAL DAMAGES.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, BANDIER, ITS AFFILIATES, AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE CONTENT, INFORMATION OR OTHER MATERIALS LOCATED ON THE SITE.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT 5PHERE IS NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE SITE. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM 5PHERE SHALL CREATE ANY WARRANTY ON BEHALF OF BANDIER IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
TO THE EXTENT APPLICABLE, NOTHING SET FORTH IN THIS SECTION AFFECTS YOUR STATUTORY RIGHTS AS A CONSUMER.
19. Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL BANDIER OR ANY OF ITS AFFILIATES, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF BANDIER HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. SUBJECT TO THE FOREGOING, IN NO EVENT WILL BANDIER BE LIABLE FOR ANY DAMAGES IN EXCESS OF ANY FEES PAID BY YOU IN CONNECTION WITH YOUR USE OF THE SITE DURING THE SIX MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
Nothing in the Agreement removes or limits 5PHERE’s liability for fraud, fraudulent misrepresentation, death or personal injury caused by its gross negligence, and, if required by applicable law, negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement shall be held invalid or unenforceable in whole or in part in any jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in any jurisdiction.
21. Personal Jurisdiction, Forum Selection and Legal Compliance
You acknowledge and agree that we make no representation that the Site is governed by or operated in accordance with the laws of other nations, or that the Site (or any portion thereof) is appropriate or available for use in any particular jurisdiction. Users who elect to access the Site, acknowledge and agree that they do so on their sole initiative and at their sole risk, and are solely responsible for complying with all local laws, rules and regulations. By using this Site, users from outside of the United States of America acknowledge this Site is subject to the laws and regulations of the United States of America and the State of New York and waive any claims that may arise under other laws. This Agreement shall be governed solely by, and construed in accordance with New York law, notwithstanding conflict of laws provisions. Any disputes arising under this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts of the State of New York and venue shall lie in New York County and, by using the Site, you hereby submit to the personal jurisdiction of such courts for such purposes and waive any and all objections as to jurisdiction or venue in such courts.
22. Class Action Waiver
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND 5PHERE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. Unless both you and Bandier agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
23. Contact Us
If you have any questions concerning the Site or this Agreement, please contact us using the information below.