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The FruitGuys® Terms of Service

Welcome to www.fruitguys.com (“Website”). This Website is owned by The Fruit Guys, LLC ("The FruitGuys"), and the text below is brought to you courtesy of our lawyer, Bob, who is a Virgo (the most meticulous of all the zodiac signs).

When you visit this Website, you are agreeing that both your access to the Website and your use of the Website are governed by these Terms of Service (“Terms”). These Terms are effective as of February 12, 2016 (“Effective Date”).

Users
Lawyer Bob, who is really nice but sometimes a bit of a buzzkill, has let us know that you must be 18 years of age or older to use, register for an account, transmit/submit/post any content, material, or personally identifiable information, or place an order on this Website. By submitting information through the Website you represent that you meet these age restrictions. The FruitGuys provides you with access to, and use of, the Website subject to your compliance with these Terms. No material from the Website may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except as specifically allowed in these Terms.

These Terms of Use May Change
The FruitGuys® has included the effective date of our Terms above. We reserve the right to update or modify these Terms of Use at any time without prior notice. Your use of the Website following any such change constitutes your agreement to follow and be bound by the Terms of Use as changed. For this reason, we encourage you to review these Terms of Use whenever you use the Website. These Terms supersede all previous notices or statements regarding the Website. The FruitGuys reserves the right to terminate or discontinue any aspect of the Website in our sole discretion and without any notice including, but not limited to, information or other materials, features, and/or hours of availability, and we will not be liable to you or to any third party for doing so.

Website Contents
All of the content you see on the Website, including, for example, all of the page headers, images, illustrations, graphics, audio clips, video clips, and text, are subject to trademark, service mark, trade dress, copyright, and/or other intellectual property rights or licenses held by The FruitGuys®, one of its affiliates, or by third parties who have licensed their materials to The FruitGuys®. The entire content of the Website is copyrighted as a collective work under U.S. copyright laws, and The FruitGuys® owns a copyright in the selection, coordination, arrangement, and enhancement of the content. The content of the Website, and the Website as a whole, are intended solely for personal, noncommercial use by the users of the Website. You may only download, print, and store selected portions of the content, provided you (1) only use these copies of the content for your own personal, noncommercial use, (2) do not copy or post the content on any network computer or broadcast the content in any media, and (3) do not modify or alter the content in any way, or delete or change any copyright or trademark notice.

We grant you a personal, non-exclusive, non-transferable license to access the Website and to use the information and services contained here. No right, title, or interest in any downloaded materials is transferred to you as a result of any such downloading. The FruitGuys® reserves complete title and full intellectual property rights in any content you download from the Website. No joint venture, partnership, employment, or agency relationship exists between The FruitGuys® and you as a result of these Terms or your use of the Website.

All content that you post on this Website or otherwise disclosed, offered, or submitted to The FruitGuys® or any of our brands shall be and remain The FruitGuys®’ property, which we may use for any purpose including commercial purposes. Such disclosure, submission, or offer of any content shall constitute an assignment to The FruitGuys® of all worldwide rights, titles, and interests in all copyrights and other intellectual property in the content. The FruitGuys® is and shall be under no obligation to maintain any content you post, offer, disclose, or submit to The FruitGuys® in confidence or to pay to user any compensation for any such content.

Except as otherwise provided herein, use of the Website does not grant you a license to any content, features, or materials you may access on the Website and you may not copy, download, reproduce, modify, rent, lease, loan, sell, publish, transmit, transfer, distribute, or create derivative works of such content, features, or materials, in whole or in part unless you first obtain written permission from The FruitGuys®. Any commercial use of the Website is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the content or screens for any purpose except as otherwise provided by The FruitGuys®. If you make use of the Website, other than as provided herein, in doing so you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material, or any other intellectual property by including them on the Website.

Trademarks and Service Marks
Below is a non-exhaustive list of trademarks and service marks owned by The FruitGuys®. Any third party trademarks, product names, company names, and logos appearing on this Website are the property of their respective owners.

THE FRUITGUYS®
THE FRUITGUYS BRAND FOOD THAT WORKS®
DORMSNACK®
SMILESNACK®

Submissions
All comments, feedback, suggestions, ideas, and other submissions disclosed, submitted, or offered to The FruitGuys® on or by the Website or otherwise disclosed, submitted, or offered to The FruitGuys® (collectively, “Comments”) shall be and remain The FruitGuys®’ property, which we may use for any purpose including commercial purposes. Such disclosure, submission, or offer of any Comments shall constitute an assignment to The FruitGuys® of all worldwide rights, titles, and interests in all copyrights and other intellectual property in the Comments. The FruitGuys® is and shall be under no obligation to maintain any Comments in confidence or to pay to user any compensation for any Comments.

You agree that no Comments submitted by you to The FruitGuys® will violate any right of any third party, including copyright, trademark, privacy, or other personal or proprietary right(s). You are and shall remain solely responsible for the content of any Comments you make.

Messages
You may not use unlawful, obscene, profane, threatening, etc., language or content in any message sent to a third party through the use of any of the various The FruitGuys®messaging services available to customers (“Message”), including, without limitation, gift messages, and messages sent when forwarding product information. Examples of the kinds of conduct or content that are prohibited in a Message include:

·         The transmission of any content that could violate, or could facilitate the violation of, any applicable law or regulation

·         The transmission of any content that is profane, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory, or otherwise objectionable

·         The impersonation of any person or entity in any part of any Message

We may, but are not obligated to, restrict or remove any and all content from a Message that we determine in our sole discretion violates these guidelines or is otherwise harmful to us, other The FruitGuys® customers, or any third party.

Privacy and Your Information
Your information is subject to The FruitGuys®' Privacy Policy. For more information, see our full Privacy Policy. You agree to the use of your information in accordance with our Privacy Policy.

Inaccuracy Disclaimer
From time to time there may be information on the Website, in an email to you, or in our catalog that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. The FruitGuys® reserves the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your order).

Password Security
If you register for an account with the Website, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur using your account or password.

Links
The Website may provide, or third parties may provide, links to other websites or resources. Because The FruitGuys® has no control over such sites and resources, The FruitGuys®is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. The FruitGuys® shall not be 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 or through any such site or resource. The FruitGuys® reserves the exclusive right, at its sole discretion, to add, change, decline, or remove, without notice, any feature or link to any linked site. Permission must be granted by The FruitGuys® for any type of link to the Website. To request our permission, you may write to The FruitGuys® at the address below. We reserve the right to deny any request or rescind any permission granted by us to link through any type of link and to require termination of any link to the Website at our discretion at any time.

Colors
We have done our best to display as accurately as possible the colors of the products shown on the Website. However, because the colors you see will depend, in large part, on your monitor, we cannot guarantee that your monitor’s display of any color will be accurate.

Disclaimer of Warranty
THIS WEBSITE IS PROVIDED BY THE FRUITGUYS® ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE FRUITGUYS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS WEBSITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS WEBSITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK.

TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE FRUITGUYS® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE FRUITGUYS DOES NOT WARRANT THAT THIS WEBSITE, ITS SERVERS, OR EMAIL SENT FROM THE FRUITGUYS® ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

Limitation of Liability
NEITHER THE FRUITGUYS® OR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS WEBSITE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, LOSS OF DATA, INCOME, OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, AND CLAIMS OF THIRD PARTIES.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

Indemnification
You agree to defend, indemnify, and hold The FruitGuys® and its corporate parent(s) and affiliates, and its and their respective directors, employees, agents, successors, and assigns harmless from and against any and all claims, damages, costs, and expenses, including attorneys' fees, arising from or related to your use of the Website, your violation of these Terms, or your posting or transmission of any materials on or through the Website.

Arbitration Agreement and Class Action Waiver

This Arbitration Agreement facilitates the prompt and efficient resolution of any disputes that may arise between you and The FruitGuys®.  Arbitration is a form of private dispute resolution in which parties to a contract agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial.  You have the right to opt-out of this Arbitration Agreement (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

 

Please read this Arbitration Agreement carefully.  It provides that all disputes between you and The FruitGuys® shall be resolved by binding arbitration.  Arbitration replaces the right to go to court.  In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Except as otherwise provided, entering into this Arbitration Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  The arbitrator must follow this Arbitration Agreement and can award the same damages and relief as a court (including attorney’s fees, if otherwise authorized by applicable law).

 

For the purpose of this Arbitration Agreement, “The FruitGuys®” means The FruitGuys® and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents.  The term “Dispute” means any dispute, claim, or controversy between you and The FruitGuys® regarding any aspect of your relationship with The FruitGuys®, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Agreement (with the exception of the enforceability of the Class Action Waiver clause below).  “Dispute” is to be given the broadest possible meaning that will be enforced.  

 

WE EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

 

Pre-Arbitration Dispute Resolution

For all Disputes, whether pursued in court or arbitration, you must first give The FruitGuys® an opportunity to resolve the Dispute through a written notice.  You must commence this process by mailing written notification of the Dispute to The FruitGuys, 490 Eccles Avenue, South San Francisco, CA 94080.  That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek.  If The FruitGuys® does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.  You may pursue your Dispute in a court only under the circumstances described below.

 

Arbitration Procedures

If this Arbitration Agreement applies and the Dispute is not resolved as provided above (“Pre-Arbitration Claim Resolution”) either you or The FruitGuys®  may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a representative or class arbitration.  All issues shall be for the arbitrator to decide, including the scope of this Arbitration Agreement.

 

For arbitration before the AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This Arbitration Agreement governs in the event it conflicts with the applicable arbitration rules.  Under no circumstances will class action procedures or rules apply to the arbitration.

 

Because your contract with The FruitGuys®, the Terms of Service, and this this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. 

 

Arbitration Award

The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party.  Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

 

Location of Arbitration

You may initiate arbitration in either San Francisco, California, or in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.  In the event that The FruitGuys® initiates an arbitration, it may only do so in the federal judicial district that includes your address that you provide in your written notification of Pre-Arbitration Dispute Resolution.

 

Payment of Arbitration Fees and Costs

The The FruitGuys® will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration.  You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses.  Fees and costs may be awarded as provided pursuant to applicable law.  In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with The FruitGuys® as provided in the section above titled “Pre-Arbitration Dispute Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover from The FruitGuys® your actual and reasonable attorney’s fees and costs as determined by the arbitrator.

 

Class Action Waiver

The parties agree that the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and The FruitGuys® specifically agree to do so following initiation of the arbitration. Neither you, nor any other Member of The FruitGuys® and/or user of The FruitGuys® services, can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above. 

 

Limitation of Procedural Rights

You understand and agree that, by entering into this Arbitration Agreement, you and The FruitGuys® are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court.  In the absence of this Arbitration Agreement, you and The FruitGuys® might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions).  Except as otherwise provided below, you give up those rights.  Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration.  The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.

 

Severability

If any clause within this Arbitration Agreement (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Agreement, and the remainder of this Arbitration Agreement will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, then this entire Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court.

 

Continuation of Arbitration Agreement

This Arbitration Agreement shall survive the termination of your contract with The FruitGuys® and your use of The FruitGuys® services.

 

User Conduct
You agree to use the Website only for lawful purposes. You agree not to take any action that might compromise the security of the Website, render the Website inaccessible to others, or otherwise cause damage to the Website or its content. You agree not to use the Website in any manner that might interfere with the rights of third parties.

Specific Prohibited Uses
You are responsible for your own communications, including the upload, transmission, and posting of information, and are responsible for the consequences of your posting on or through the Website. The FruitGuys® specifically prohibits any use of the Website, and requires all users to agree not to use the Website, for any of the following:

1.    Posting any information that is incomplete, false, inaccurate, or not your own

2.    Impersonating another person

3.    Engaging in or encouraging conduct that would constitute a criminal offense, giving rise to civil liability or otherwise violate any city, state, national, or international law or regulation, or that fails to comply with accepted Internet protocol

4.    Posting material that is copyrighted or otherwise owned by a third party unless you are the copyright owner or have the permission of the owner to post it

5.    Posting material that reveals trade secrets, unless you own them or have the permission of the owner

6.    Posting material that infringes on any other intellectual property, privacy, or publicity right of another

7.    Transmitting or transferring (by any means) information or software derived from the Website to foreign countries or certain foreign nations in violation of U.S. export control laws

8.    Attempting to interfere in any way with the Website's or The FruitGuys®' networks or network security, or attempting to use the Website's service to gain unauthorized access to any other computer system

Security Rules
Violations of system or network security may result in civil or criminal liability. The FruitGuys® will investigate occurrences and may involve, and cooperate with, law enforcement authorities in prosecuting the user or users who are involved in such violations. You are prohibited from violating or attempting to violate the security of the Website, including, without limitation, the following:

1.    Accessing data not intended for such user or logging into a server or account that user is not authorized to access

2.    Attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization

3.    Attempting to interfere with service to any user, host, or network, including, without limitation, via means of submitting a virus to the Website, overloading, denial of service attacks, or any other effort to cause "crashing" of the Website

4.    Sending unsolicited email, including promotions and/or advertising of products or services

5.    Forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting

International Use – Consent to Processing
The FruitGuys® controls and operates the Website from our offices in the United States, and all information is processed within the United States. We do not represent that materials on the Website are appropriate or available for use in other locations. Persons who choose to access the Website from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

You agree to comply with all applicable laws, rules, and regulations in connection with your use of the Website. Without limiting the generality of the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

If you access the Website from locations outside the United States you agree that any information you provide to or though the Website may be processed in the United States.

Termination of Usage
The FruitGuys® may terminate your access, or suspend your access to all or part of the Website, without notice, in The FruitGuys®’ sole discretion. Such termination or suspension of access may occur, without limitation, for any conduct that The FruitGuys®, in its sole discretion, believes is a violation of these Terms of Use, is in violation of any applicable law, or is harmful to the interests of another user, customer, recipient, licensor, content or service provider, The FruitGuys®, or its affiliates.

Applicable Law
These Terms of Use shall be governed in all respects by the laws of the State of California, excluding its rules governing conflict of laws. You agree that any claim or dispute you may have against The FruitGuys® must be resolved by a court located in San Mateo County, California. You agree to submit to the personal jurisdiction of the courts located within San Mateo County, California for the purpose of litigating all claims or disputes.

Waiver
The failure of The FruitGuys® to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.

Severed Provisions
If any provision of these Terms of Use is unenforceable, that provision shall be deemed severed from these Terms of Use and shall not affect the validity and enforceability of the remaining provisions.

Contacting Us
To contact our The FruitGuys® brands, with any questions or concerns in connection with these Terms or the Website, or to provide notice to The FruitGuys®, you can email, call, fax, or write to us at the following:

The FruitGuys:
Email: info@fruitguys.com
Call: 1-877-FRUIT ME (877-378-4863)
Fax: 888-972-1832
Mail: The FruitGuys
490 Eccles Avenue
South San Francisco, CA 94080

Our toll-free customer service lines are available Monday through Friday 5 a.m.–5:30 p.m. PST (subject to change).

©2015, The Fruit Guys, LLC. All rights reserved.