Terms & Conditions
TERMS & CONDITIONS
Last updated: September 22, 2023
PLEASE READ THESE TERMS & CONDITIONS CAREFULLY BEFORE PLACING AN ORDER, WHETHER BY PHONE, ONLINE OR VIA ANOTHER ACCEPTED METHOD FOR PLACING ORDERS, OR OTHERWISE USING OR RELYING ON THIS WEBSITE.
This Website’s Terms & Conditions contains a choice of law provision. If you are accessing this Website or contacting us to place an order from outside of the United States, the laws and regulations of your country of access do not govern this agreement, your access to the Website or your purchase of a product or service.
Your purchase of a PHW product or service and/or use of this Website shall be deemed to constitute your consent to be bound by the terms of this Agreement and shall be enforceable in the same way as if you had signed this Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE DO NOT PLACE AN ORDER FOR A PRODUCT OR SERVICE OR USE THIS WEBSITE. THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (DEFINED IN SECTION 20 BELOW) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THE MANDATORY ARBITRATION AGREEMENT, SECTION 20 BELOW DESCRIBES THE OPT-OUT PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS A MEMBER OF A CLASS ACTION.
- Who is Eligible to Use the Website or Purchase a PHW Product or Service?
This Website and other means of communicating, engaging or interacting with us are intended for use by adults (age 18 and over). In order to use the Website and/or purchase a PHW product or service, you must be (a) 18 years or older and have the legal capacity to enter into a binding contract with us; or (b) 16 years or older and if purchasing products or services, your parent or guardian consents to the Agreement and your parent or guardian has the legal capacity to enter into an Agreement with us. The Website is not intended for children under the age of 16 and no person under the age of 16 may use the Website, or engage or interact with us in any way. If you use the Website, communicate or interact with us in any way, you are affirming that you are at least 16 years old.
- Reviews and other User Generated Content
Subject to the terms of this Section 2 and, to the extent applicable, Section 3 below, you may post photographs, comments, video clips, reviews and other communications and content to any PHW Website or social media platform (such content collectively referred to as “User Generated Content” or “UGC”). You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of any UGC. By posting or submitting UGC to any PHW Website or social media account or other platform owned or controlled by PHW, you grant PHW a non-exclusive, fully-paid up, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such UGC, including the name submitted in connection with such content, throughout the world in any media now known or hereafter conceived. PHW and any of its authorized third-party contractors may use, transfer, copy, reproduce, distribute, publicly display, digitally perform, modify, create derivative works from and commercially exploit any UGC, including any ideas, concepts or know-how contained in a UGC for any purpose whatsoever including, but not limited to, developing, manufacturing, distributing and marketing products that use such content.
You hereby give permission, authorization and license, if any, required by applicable law or third-party website or application terms and/or policies (including without limitation the Instagram Platform policy), for PHW’s transfer to and use by PHW and its authorized third-party contractors of your private and personally identifiable information and any UGC for the purpose of providing marketing and technology and related services, sending applicable emails and recommendations, operation and improvement of any third-party platforms, use of targeted behavioral advertisements and analysis and transfer to third parties for all of these purposes.
You represent and warrant that (a) you own, have or otherwise control all of the rights to the UGC, including without limitation, any consents, assignments, licenses, permissions and authorizations (including the waiver of any moral rights) necessary for PHW and any of its authorized third-party contractors to use the UGC for any lawful purpose; (b) the UGC is accurate; (c) the use of UGC does not violate this Agreement and will not cause injury to any person or entity; and (d) you will indemnify PHW for all claims relating to the UGC.
Neither PHW nor its third-party contractors shall be responsible or liable for any UGC. PHW and PHW’s authorized third-party contractors shall have the right, but not the obligation, to monitor and edit or remove from any of their respective websites or platforms (each a “Platform”) any activity or content for any reason and without notice. You agree that you will only use a Platform for personal and non-commercial use.
- Your Use of the Website
You must only use the Website for lawful purposes and you must not use it in a way that infringes the rights of anyone else or that restricts or inhibits anyone else’s enjoyment of the Website. You may not (without our prior written consent):
- copy, reproduce, rent, lease, loan or sell content retrieved from the Website;
- modify, distribute or re-post any content on the Website for any purpose; or
- use the content of the Website for any commercial purpose whatsoever.
When using the Website, you further agree:
- not to disrupt or interfere with the security of, or otherwise abuse, the Website, or any services, system resources, accounts, servers, or networks connected to or accessible through the Website or an affiliated or linked website;
- not to disrupt or interfere with any other user’s enjoyment of the Website and affiliated or linked websites;
- not to upload, post or otherwise transmit through or on the Website any viruses or other harmful, disruptive or destructive files;
- not to use, frame or utilize framing techniques to enclose any PHW trademark, logo or other proprietary information (including the images found on the Website or on any PHW social media page that links to the Website, the content of any text, or the layout/design of any page or form contained on a Website page) without PHW’s written consent;
- not to reverse engineer or create derivative works based on the Website or any content (including, without limitation, any software) available through the Website.
- not to use meta tags or any other “hidden text” utilizing a PHW company name, trademark or product name without PHW’s written consent;
- not to deep-link to the Website without the PHW’s written consent;
- not to use a false identity or an identity of another person on the Website, allow any person besides yourself to use your account information to access the Website or use or share another party’s information on the Website;
- not to collect or store personal data about others;
- not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
- to comply with all applicable laws regarding your use of the Website.
- Your Privacy
- Information is not Intended to Provide Medical Diagnosis, Advice or Treatment
THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) PROVIDED IN THE WEBSITE, VIA TELEPHONE OR INCLUDED IN MARKETING MATERIALS IS NOT INTENDED TO BE PROVIDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT AND THE STATEMENTS MADE ON OUR WEBSITES, VIA TELEPHONE OR IN MARKETING MATERIALS HAVE NOT BEEN EVALUATED BY THE FDA (UNITED STATES FOOD & DRUG ADMINISTRATION). THE PRODUCTS AVAILABLE THROUGH THIS WEBSITE, VIA TELEPHONE OR THROUGH ANY OTHER METHOD OF PURCHASE ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE. THIS WEBSITE AND THE INFORMATION PROVIDED THROUGH THE WEBSITE OR THROUGH ANY OTHER COMMUNICATIONS BY US OR THROUGH US ARE NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE OR SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR HEALTH AND UNIQUE FACTS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER BEFORE STARTING ANY NEW PROGRAM OR TAKING ANY SUPPLEMENT. PHW, ITS AGENTS AND REPRESENTATIVES ASSUME NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON THE INFORMATION, SERVICES, OR OTHER MATERIAL AVAILABLE ON THE WEBSITE OR THROUGH YOUR INTERACTION WITH US. WHILE WE SEEK TO KEEP THE INFORMATION ON THESE MATERIALS ACCURATE AND UP-TO-DATE, PHW CANNOT GUARANTEE, AND SHALL NOT BE RESPONSIBLE FOR, ANY DAMAGE OR LOSS RELATED TO THE ACCURACY OR TIMELINESS OF ANY INFORMATION THAT WE PROVIDE TO YOU OR MAKE AVAILABLE ON THE WEBSITE.
- No Warranty; Disclaimer
THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PHW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PHW DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET ANY REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. PHW MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE, THE PRODUCTS OR SERVICES OFFERED ON THE WEBSITE, THROUGH THE PHONE OR VIA ANY OTHER METHOD OF PURCHASE OR AS TO THE ACCURACY, QUALITY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH ANY PHW WEBSITE, INCLUDING BUT NOT LIMITED TO INFORMATION OBTAINED THROUGH ANY LIVE CHAT OR STATIC OR DYNAMIC CONTENT.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHW OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
- Links to third-party websites
- Product or Services available directly from PHW
PHW reserves the right, without notice, to discontinue products or services or modify specifications and prices on products or services without incurring any obligation to you. PHW takes reasonable steps in an effort to ensure that the prices set forth on the Website, or otherwise made available by us directly are correct, and to accurately describe and display the items available on the Website. However, when ordering products or services, please note that PHW does not warrant that product or service descriptions are accurate, complete, current, or error-free or that packaging will match the actual product or service that you receive. If any item or service described by PHW is not as described when you receive it or if the packaging depicted in our advertisements does not match what you receive, your sole remedy is to return it to us in an unused/unopened and undamaged condition in accordance with the terms of the Guarantee/Return Policy available on the Website or by calling a customer care professional at the telephone number included on or with the product you purchased or on the Website. Notwithstanding the foregoing, in the case of a material change in the terms of an automatic renewal program that you have accepted, PHW will provide you with a notice of the material change and information regarding how to cancel your participation in the program. PHW’s descriptions of, or references to, products or services not owned or distributed by PHW are not intended to imply endorsement of that product or constitute a warranty by PHW unless expressly stated on the Website.
- Pricing Errors and Product or Service Unavailability
Prices, availability and other purchase terms are subject to change at any time and generally without notice. We make every effort to provide accurate pricing information and to ensure product or service availability, however, PHW reserves the right to revoke any offer to correct errors, inaccuracies or omissions, including after receiving an order that has been submitted, confirmed or after your credit card has been charged. If your order is canceled because of an error, your credit card will be refunded the full amount of your order. Please allow for one full billing cycle to complete the refund process.
- Order Placement and Acceptance
If you order a product or service, payment must be received by PHW before your order is accepted. PHW may require additional information from you regarding your order if the information provided is incomplete or inaccurate.
PHW does not accept orders from dealers, wholesalers or customers who are resellers or intend to resell items. You represent and warrant that you are buying products or services for your own personal or household use only, and not for resale or export. If PHW discovers that you are placing orders with the intent to resell items, we will immediately cancel your order, suspend or terminate your account and, at our option, pursue any and all available legal remedies under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen credit cards, PHW will report you to federal, state and/or local enforcement authorities.
PHW will add applicable shipping and handling fees and sales tax to your order. Unless otherwise stated, PHW will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed order. Although PHW may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. You further understand that product or service availability may be limited and particular products or services may not be available for immediate delivery. If PHW becomes aware that your order will be delayed or that any item or service is not available, PHW will contact you at the e-mail or phone number or street address you provided when placing your order and will inform you of the expected availability date and may offer you an alternative product or service. If PHW is unable to contact you, or if you contact PHW to cancel your order before your order is processed for shipping or if you do not wish to substitute the product or service, PHW will cancel the order and if previously charged, your credit card charge will be refunded. PHW shall not be liable for any loss, damage, cost or expense related to any delay in shipment or delivery. The risk of loss and title for such items will pass to you upon our delivery to any third-party carrier. PHW reserves the right to reject orders where the stated delivery address is outside the United States.
- Payment Information
When ordering products or services through the Website, by telephone or otherwise, you agree to provide only truthful, accurate, current and complete payment information. By placing an order, you represent and warrant that (a) the credit card information you supply to us is true, correct and complete; (b) you are duly authorized to use such credit card for the purchase; (c) charges incurred by you will be honored by your credit card company; and (d) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. PHW reserves the right to cancel any order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, outdated, fraudulent or incomplete payment information to PHW or for any other reason that we, in our sole discretion, believe appropriate. You agree that your placement of an order on or through this Website is sufficient to satisfy any applicable Statute of Frauds and no further writing is required.
- Automatic Shipment Terms
By placing an order online, by telephone or through any other method of purchase as part of an automatic renewal program YOU CONSENT TO CHARGES BEING AUTOMATICALLY MADE TO YOUR CREDIT OR DEBIT CARD FOR SUBSEQUENT SHIPMENTS AND AGREE THAT PHW MAY RESERVE THE PAYMENT INFORMATION FOR SUBSEQUENT SHIPMENTS. YOU ALSO AGREE THAT YOUR PARTICIPATION IN THE PROGRAM SHALL BE IN EFFECT UNTIL IT IS CANCELED BY YOU.
IF YOU PARTICIPATE IN AN AUTOMATIC RENEWAL PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, THE PAYMENT FOR EACH SHIPMENT WILL BE AUTOMATICALLY PROCESSED AT THE SCHEDULED TIME OF EACH SHIPMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND AGREEMENT TO PARTICIPATE IN THE PROGRAM. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN AN AUTOMATIC RENEWAL PROGRAM, YOU MAY DO SO AT ANY TIME BY CONTACTING A CUSTOMER CARE PROFESSIONAL VIA THE CONTACT INFORMATION PROVIDED ON THE WEBSITE OR THROUGH THE TELEPHONE.
You agree that these Terms & Conditions, which are available on the Website and can be readily accessed, downloaded and/or printed by you, shall constitute an acknowledgment of the terms of PHW’s automatic renewal program, cancellation policy and information regarding how to cancel the program in a manner that is capable of being retained by you.
We may, in our sole discretion, terminate the program or your participation in the program at any time and will provide you with notice of the same. You are obligated to provide current, complete, and accurate information for your account. You are responsible for updating all information, including credit card or payment information, to keep your billing account current, complete, and accurate. You must promptly notify us of any changes to your credit card or payment information (e.g., change in billing address, credit card number or credit card expiration date) or if your credit card information is cancelled or is no longer valid (e.g., loss or theft) or your shipment may be delayed or cancelled. Changes to such information can be made by contacting a customer care professional. Please see the Website for information on how to contact a customer care professional. If you participate in an automatic shipment program using a credit card and your credit card fails to process for a subsequent shipment, PHW may contact you for alternate payment information. If you fail to pay for any product or service received, your account may be sent for collection.
- Electronic Documents and Signatures
All information communicated on the Website is considered an electronic communication. When you communicate with any PHW company through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
You further acknowledge and agree that by clicking on a button labeled “SUBMIT”, “BUY NOW”, “PURCHASE”, “ORDER NOW”, “I ACCEPT”, “I AGREE” or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submission constitutes your agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes (and any revisions or amendments thereto). YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE OR BY TELEPHONE. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records or to payments or the granting of credits by other than electronic means.
- Communicating with PHW
You understand that all telephone calls, live chats and other communications such as personal messaging or social media posts to or from PHW are monitored and recorded and YOU CONSENT TO SUCH MONITORING AND RECORDING. You verify that any contact information provided to PHW is true and accurate. You further verify that you are the account subscriber or that you own or are an authorized user of any telephone numbers, email addresses, etc. that you provide to PHW. You further agree that PHW and/or its agents may contact you at any telephone numbers, email addresses, etc. that you provide to PHW and/or its agents, including via text and/or an automatic telephone dialing system or artificial or prerecorded voice, for any purpose, including service or marketing, even if your telephone number is on a corporate, state or National Do Not Call Registry. You understand that you are not required to provide such consent as a condition of receiving any good or service, and that such communications may be made by or on behalf of PHW. You acknowledge that you may incur a charge for these communications by your telephone or internet carrier and that PHW will not be responsible for these charges.
PHW may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing or shipping addresses, phone numbers or other methods of communication provided by you directly or obtained through other lawful means, such as skip tracing. You agree to call our Customer Service Department (please visit the Website for information on how to contact a customer care professional) or to provide PHW notice within 30 days of any change to your contact information by writing to 4130 SW 28th Way, Fort Lauderdale, FL 33312, Attention: Customer Service or emailing [email protected]. Your consent to this communications provision is not required to make any purchase with PHW.
- Text Marketing & Notifications
By providing your mobile telephone number to us, you are subscribing to receive text marketing notifications. That means that you agree to receive recurring automated marketing messages and shopping cart reminder messages at the mobile phone number you have provided.
We determine shopping cart abandonment by using cookies and other tracking technology, to check whether the existing user has already opted in for text marketing.
Consent is not a condition of purchase. Reply “STOP” to unsubscribe and “HELP,” for help. Msg & Data rates may apply.
If you do not wish to be part of our service, you can unsubscribe at any time by texting “STOP,” “CANCEL,” “QUIT,” “END,” or “UNSUBSCRIBE” to any mobile message you received from us. You may get another text message confirming that you have unsubscribed from our service. You also agree that by sending an e-mail, calling in, or sending any other means of opting out or to unsubscribing or using words different from the ones presented above will not be reasonable means to unsubscribe from our service.
When you opt in to receive text messages from us you may expect to get occasional texts concerning latest Text Alerts, Surveys, Welcome messages, Customer Win-backs, Text Campaigns, Giveaways, Flash Sales, Upsells, Feedback or Review Requests, etc. If your device does not support MMS we will deliver a SMS instead and strip the image. Confirmation of receipt of opt out messages or requests will also be delivered as a standard text message (SMS).
Carriers (AT&T, T-Mobile, Verizon, Sprint, Rogers, MetroPCS, etc.) are not responsible or liable for undelivered or delayed messages.
- Limited Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL PHW, ITS SUPPLIERS, REPRESENTATIVES, AFFILIATES OR AGENTS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS INCLUDES WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE RESULTING FROM (A) THE USE OF, OR THE INABILITY TO USE, THE WEBSITE; (B) THE USE OF, OR THE INABILITY TO USE, ITEMS OR SERVICES PURCHASED ON OR THROUGH THE WEBSITE, VIA TELEPHONE OR THROUGH ANY OTHER METHOD OF PURCHASE; OR (C) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR ITEMS.
You agree to indemnify and hold harmless PHW and all its directors, officers, employees, representatives, agents, contractors, co-branders, suppliers and affiliates from and against any and all liability, losses, claims, demands, disputes, damages and costs of any kind including, without limitation, reasonable attorneys’ fees and costs of litigation resulting from or in any way connected with (a) your use of the Website or a PHW controlled social media page or platform; (b) information you submit or transmit to PHW through the telephone, Website or any other method (including, but not limited to UGC); (c) privacy, tort or other claims (e.g., claims under the Federal Telephone Consumer Protection Act or its state law equivalent) relating to the provision of personal information (e.g., telephone number) to PHW that is not owned by you, in contravention of this Agreement; or (d) your breach of this Agreement.
- Termination, Suspension, Revision of Website
You agree that PHW may, in its sole discretion and at any time, revise, terminate or suspend its operation of the Website or your use of the Website, without prior notice to you, for any reason. You further agree that PHW shall not be liable to you or to any third party for the consequences of such termination, suspension or revision. In the event of any change to your use of or access to the Website, you agree that the provisions of the Agreement regarding protection of intellectual property rights and license, indemnification and disclaimer regarding information provided on the Website, disclaimer of warranties with respect to use of the Website, limitation on PHW’s liability, and pre-dispute procedures, mandatory binding arbitration and class action waiver shall survive any such termination, suspension or revision.
- Pre-Dispute, Mandatory Binding Arbitration and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY AND THAT THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Arbitration is a manner of resolving a “Claim” without filing a lawsuit. “Claim” means any dispute between you, PHW or its affiliates, agents or representatives or any involved third party relating to your account, your use of the Website, your relationship with PHW or this Agreement. This includes any and all Claims that arise from or relate in any way to your use of the products or services, your attempted use of the products or services, the use of the Website and any act or omission by PHW or any third party related to your use or attempted use of the products or services. You, PHW or any involved third party may pursue a Claim. PHW agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against PHW. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This includes Claims based on contract, tort, equity, statute, or otherwise, as well as Claims regarding the scope and enforceability of this provision. It includes all Claims by or against you, PHW and/or any affiliated person, company and/or agent or representative. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
As an exception to binding arbitration, you and PHW both retain the right to pursue, in a small claims court, any Claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including overdue account matters within the small claims court’s jurisdiction. PHW will not demand arbitration in connection with any individual Claim that you properly file and pursue in a small claims court, so long as the Claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Required Pre-Dispute Procedures
You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against PHW, you will first give us an opportunity to resolve your problem or dispute. You are required to send a written description of the issue to us, including, but not limited to, information or representations related to the product or service upon which you rely. You may send the written description by U.S. Mail to Pet HealthWorks, Inc., 4130 SW 28th Way, Fort Lauderdale, FL 33312, Attn: Legal Department. You agree to negotiate with PHW or its designated representative in good faith about your problem or dispute. If for some reason your problem or dispute is not resolved to your satisfaction within sixty (60) days after PHW’s receipt of your written dispute, you agree to the dispute resolution provisions below.
You and PHW agree to commence any arbitration proceeding within one (1) year after the Claim arises (the one (1) year period includes the required pre-dispute procedures set forth above) and that any arbitration proceeding commenced after one (1) year shall be barred.
For your convenience, the arbitration may be conducted in the federal district where you reside. If both you and PHW agree, the arbitration may be held by telephone or through written submissions.
Organization, Rules and the Arbitrator
You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures (see www.jamsadr.com) and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal or visiting its website.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability or enforceability of this Agreement and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this Agreement and whether a non-signatory to this Agreement can enforce this provision against you or PHW.
The parties shall share equally the arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own fees, costs and expenses, including but not limited to, those for any attorneys, experts, documents and witnesses.
The arbitrator shall follow Florida substantive law and any ordered relief shall be binding. The arbitrator may award any form of individual relief including injunctions and punitive damages. The arbitrator may award costs or fees to a prevailing party. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final subject to appeal under the FAA.
This provision survives termination of your account or relationship with PHW, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e. unenforceability would allow arbitration to proceed as a class or representative action) then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.
Failure or any delay in enforcing this arbitration provision in connection with any particular Claims will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims except all Claims must be brought within the one (1) year limitation period set forth above. This provision is the entire arbitration agreement between you and PHW and shall not be modified except in writing by PHW.
PHW reserves the right to amend this arbitration provision at any time. Your continued use of any PHW Website, purchase of a product or service on or through a PHW Website or by any other method, or use or attempted use of a PHW product or service following the posting of an amendment to this arbitration provision constitutes your consent to such changes. Should the changes to this arbitration provision be material, PHW will provide you notice and an opportunity to opt-out. Your continued use of any PHW site, purchase of a product or service or use or attempted use of a PHW product or service is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE INITIAL DATE OF PURCHASE, USE OR ATTEMPTED USE OF A PRODUCT OR SERVICE PURCHASED BY TELEPHONE, THROUGH THIS PHW WEBSITE OR VIA ANY OTHER METHOD OF PURCHASE (WHICHEVER COMES FIRST) BY WRITING TO PET HEALTHWORKS, INC., 4130 SW 28TH WAY, FORT LAUDERDALE, FL 33312 ATTN: LEGAL DEPARTMENT.
FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY PRODUCT OR SERVICE YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE THIRTY (30) DAYS OF THE INITIAL DATE OF PURCHASE, USE OR ATTEMPTED USE OF THE PRODUCT OR SERVICE. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST PURSUE YOUR CLAIM THROUGH ARBITRATION AS SET FORTH IN THIS AGREEMENT.
- Choice of Law and Exclusive Venue for all other Controversies
This Agreement is governed by the laws of the state of Florida, United States. You agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions set forth in this Agreement (other than an individual action filed in small claims court with jurisdiction) shall be filed only in a court of competent jurisdiction located in Broward County, Florida and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
- Force Majeure
We will not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement for any failure or delay in our performance under this Agreement when and to the extent that such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats, or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
- PHW Remedies
In order to prevent or limit irreparable injury to PHW, in the event of any breach or threatened breach by you of any provisions of this Agreement, PHW shall be entitled to seek an injunction or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting PHW from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
PHW may make changes to these Terms & Conditions, from time to time, in its sole discretion, by updating and posting the revised terms on the Website without notice to you. Your continued use of a PHW product or service, including through an automatic renewal program or use of the Website following the posting of a new version of the Terms & Conditions constitutes your acceptance of any such changes. Accordingly, whenever you make a purchase or visit the Website, you should check to see if a new version of these Terms & Conditions has been posted.
- Our Intellectual Property Rights and the Intellectual Property Rights of Others
You acknowledge that content published by us or available through this Website, any other PHW Website or other pages or social media platforms we operate, including, without limitation, content in the form of text, graphics, software, music, sound, photographs, images, and videos and content provided by suppliers, sponsors, or third-party advertisers (collectively the “Intellectual Property”), is protected by copyright, trademark, patent, or other proprietary rights and laws and are the property of PHW, its respective affiliates and/or third parties. You are hereby granted a non-exclusive, non-transferable, revocable, limited license to view, copy and print content retrieved from the Website for the sole purpose of placing an order via the Website, provided that you do not remove, alter or obscure PHW’s intellectual property right notice or other notices displayed on or embedded in the content. Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Website shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of PHW company’s or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.
All trademarks and service marks displayed on the Website or on products or services of PHW are the property of a PHW company or other respective owners. You may not use or display any trademarks or service marks owned by any PHW company without the PHW’s prior written consent and you may not otherwise use or display any other trademarks or service marks displayed on the Website without the permission of the owner.
- Copyright Policy
PHW respects the copyright and intellectual property rights of others and may, without notice, remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, PHW may terminate Website access by users who appear to infringe the copyright or other intellectual property rights of others. Further, PHW will comply with the Digital Millennium Copyright Act.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide notice to PHW via e-mail to: [email protected] (PHW’s copyright agent). Please include in the notice the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the material that you claim is infringing is located on the Website.
- Your address, telephone number and e-mail address.
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
- A statement by you, made under penalty of perjury (e.g. notarized affidavit), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Please direct other inquiries regarding any infringement issues by email to [email protected].
- Additional Terms
The PHW company operating this site or providing products and services through this site, may assign, transfer or sub-contract any of its rights or obligations under this Agreement to any third party or any PHW company at its discretion. You will not assign any of your rights or delegate any of your obligations under these Terms & Conditions without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement. Any representations, warranties and indemnification obligations made or undertaken by you will survive cancellation or termination of your account or relationship with PHW. This Agreement does not and is not intended to confer any rights or remedies upon any person other than you. No delay by PHW in exercising any right or remedy under this Agreement shall operate as a waiver of that right or remedy or shall affect PHW’s ability to subsequently exercise that right or remedy. Any waiver must be agreed to by PHW in writing. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable for any reason by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein. This Agreement supersedes and replaces any other terms previously published by us and any other representations or statements made by us to you, whether oral, written or otherwise.