Last Updated: December 26, 2012
1. LICENSE AND ACCESS TO SITE
PBJ grants you a limited, noncommercial, nonexclusive, nontransferable license to access and make personal use of the Site (through a generally available web browser or mobile device) and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of PBJ. Additionally, PBJ may grant you a limited, noncommercial, nonexclusive, nontransferable license to upload User Content (as defined below) to the Site, subject to these Terms. You may use the Site solely for your own personal use and/or for your internal business purposes. Your failure to comply with any of these Terms may, in PBJ's sole discretion, result in automatic termination of these Terms and/or your access to the Site. Except for the limited right to access, and if applicable, the ability to make personal submissions to the Site as provided in these Terms, PBJ does not grant you any implied rights or licenses under any patents, trademarks, copyrights, or other proprietary or intellectual property rights. We reserve the right to terminate these Terms and/or your access to the Site at any time and for any reason. It is your responsibility to be cognizant of and obey all applicable local, state, federal and international laws (including minimum age requirements) in connection with your access to and use of the Site. By accessing or using the Site, and any content, information and/or materials obtained from the Site, you represent that such access or use is not illegal in your jurisdiction, and that the Site, and any content, information and/or materials obtained from the Site, will be used only in a lawful manner.
If you access or use the Site through a mobile device, you understand and agree that information about your usage, as well as other information (which may even include, e.g., your physical location) will be accessible to your mobile carrier and may also be communicated to PBJ in the ordinary course of data exchange. By accessing or using the Site through a mobile device, you represent that, to the extent you import any of your data to your mobile device, you have authority to share the transferred data with your mobile carrier or other access provider. You acknowledge you are responsible for all charges and necessary permissions related to accessing the Site through your mobile carrier, including without limitation any incremental data transfer and similar surcharges. You should check with your mobile carrier to determine if access to the Site is available to you, and if so, the terms and costs applicable to your specific mobile device and plan.
2.USER REGISTRATION AND INTEGRATED THIRD PARTY WEBSITES
2.1 User Registration. In consideration of your use of the Site, you represent and agree that you: (i) are of legally sufficient capacity to form a binding contract; (ii) are at least 18 years of age (or the age of majority in your jurisdiction, whichever is greater); and (iii) you will comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site. Children 14 years of age and older may only use the Site if (a) their parent or legal guardian has agreed to these Terms, and (b) their use is permitted and supervised by their parent or legal guardian. If you open an account to enhance your use of the Site, you must: (x) complete the registration process by providing true, accurate and complete information requested on the registration form (“Registration Data”); (y) maintain the accuracy of the Registration Data; and (z) provide a user name and password. You are entirely responsible for the confidentiality and use of your user name and password. You may not use the account, username, or password of someone else at any time. You are responsible for all electronic communications, including account registration and other account holder information, email, financial and other content ("Electronic Communications") entered through or under your user name and password. PBJ will act as though any Electronic Communications it receives under your user name and password will have been authorized by you. You agree to notify PBJ immediately of any unauthorized use of your account, user name, or password.
3. PRODUCT DESCRIPTIONS AND PRICING
PBJ strives for the Site to be as accurate as possible. However, PBJ does not represent or warrant that product descriptions or other content on the Site are accurate, complete, reliable, current, or error-free. For example, products included on this Site may be unavailable, may have different attributes than those listed, or may actually carry a different price than that stated on this Site. In addition, we may make changes in information about price and availability without notice. While it is our practice to confirm orders by email the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service. We reserve the right, without prior notice, to limit the order quantity on any product or service and/or to refuse service to any customer. We also may require verification of information prior to the acceptance and/or shipment of any order. If a product offered on the Site is not as described, your sole remedy is to return it within thirty (30) days of delivery in accordance with Section 5, Returns and Refunds. Despite our best efforts, a small number of the items on our Site may be mispriced. If an item's correct price is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased from the Site. By placing an order, you represent that the products ordered will be used only in a lawful manner.
4. PAYMENT TERMS; INTEREST; ORDERS
Terms of payment are within PBJ's sole discretion, and unless otherwise agreed to by PBJ, payment must be received by PBJ prior to PBJ's acceptance of an order. Payment for product orders will be accepted via those payment methods set forth on the order payment page of the Site. Your order is subject to cancellation by PBJ at PBJ's sole discretion. All amounts due are payable in U.S. dollars. Any amount not paid when due will be subject to a finance charge of one and one-half percent (1-1/2%) per month, or the maximum amount allowed by law if lower, for the unpaid balance due. You shall be responsible for any expenses and/or fees (including but not limited to attorneys' fees), incurred by PBJ in collecting past due amounts from you.
5. RETURNS AND REFUNDS
If you are not satisfied with your purchase from PBJ you may return it to us for a refund or exchange. Email us at email@example.com or via our Contact Us page with your order number and the issue, and we'll get back to you and initiate the return process. Returns are accepted up to 30 days after original purchase. Please note that returned goods must be unused, in the condition you received them, and in their original packaging. Any items that are customized, personalized, or part of our limited editions cannot be returned.
6. SHIPPING; RISK OF LOSS; TITLE; TAXES
Shipping and handling charges are additional unless otherwise expressly indicated at the time of sale. Shipping dates are estimates only. Risk of loss and title for all items purchased from PBJ pass to you upon our delivery to the carrier. You are responsible for sales and other taxes associated with all orders. Title to all intellectual property rights will remain with the applicable licensor(s).
8. USE OF SOFTWARE
PBJ may make certain software available to you from the Site. If you download software from the Site, the software, including all files and images contained in or generated by the software, and accompanying data (collectively, “Software”) are deemed to be licensed to you by PBJ, or its licensors, for your limited, nonexclusive, nontransferable personal use only. Downloading or using the Software is at your sole risk.
9. USE RESTRICTIONS
PBJ imposes certain restrictions on your permissible use of the Site. You represent and agree that you will not:
access the Site by any method other than through a generally available web browser or mobile device and not through scraping, spidering, crawling or other technology or software used to access data without a generally available web browser or mobile device;
use the Site in contravention of these Terms or any applicable law, regulation or rule;
use the Site in connection with any commercial endeavor, unless you have a prior written agreement with PBJ signed by an officer of PBJ;
market or distribute access to the Site or any portion thereof;
assign; sublicense, sell, lease or otherwise transfer or convey your rights under these Terms;
violate or attempt to violate any security feature of the Site;
access or attempt to access any content, data, programs or other PBJ systems not intended for you, or log onto a server or account that you are not expressly authorized to access;
attempt to probe, scan, or test the vulnerability of the Site or any associated system or network, or to breach security or authentication measures without proper authorization;
damage, disable, overburden or impair the Site or interfere or attempt to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus, worm, Trojan horse, spyware, adware, or similar harmful code to the Site, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;”
attempt to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code, object code or interpretive script used by PBJ in providing the Site;
attempt to modify, copy, distribute, transmit, display, perform, reproduce, publish, rent, lease, loan, license, or create derivative works based on the Site;
frame in another web page, use on any other website, transfer or sell any information, software, lists of users, databases, PBJ IP (as defined below) or other lists, products or services provided through or obtained from or through the Site, or engage in the practices of "screen scraping," "database scraping," or any other activity with the purpose of obtaining lists of users or other information from the Site;
use any meta tags or any other “hidden text” utilizing PBJ IP (as defined below) without the express written consent of PBJ;
engage in, encourage others to engage in, or provide instructional information about, conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or any regulation having the force of law, including the Civil Rights Act of 1866, the Fair Housing Act, the Americans with Disabilities Act, and the Equal Credit Opportunity Act;
harm minors in any way or solicit personal information from or about a minor;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
send email messages, post to any forum, or otherwise use the Site in any manner which intentionally or unintentionally violates any applicable local, state, national or international law or regulation (including without limitation, policies and laws related to spamming, privacy, obscenity or defamation);
send email messages or make posts that contain falsified or misleading routing information, a return address that is either invalid or belongs to a third party and is used without permission, a misleading subject line and/or body copy, or promote a fraudulent scheme; and
upload, download, post, email, transmit or otherwise make available any materials that: (a) are inappropriate, misleading, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, offensive, sexually explicit, promote gambling, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (b) you do not have a right to make available 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 nondisclosure agreements); (c) contain software viruses, worms, Trojan horses, spyware, adware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of or otherwise harm any computer software or hardware or telecommunications equipment; (d) contain unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; or (e) infringe any patent, trademark, service mark, trade secret, copyright or other proprietary rights of any party. You are solely responsible for any violations of any relevant laws and for any infringements of third party rights caused by any content you provide or transmit, or that is provided or transmitted using your login credentials. The burden of proving to PBJ’s reasonable satisfaction that any content so provided or transmitted does not violate any laws or third party rights rests solely with you.
You are granted a limited, revocable, and nonexclusive right to create a hyperlink to pages of the Site ("Site Link"); provided that (i) the link does not portray PBJ, or its products or services in a false, misleading, derogatory, or otherwise offensive matter; (ii) except as provided herein, you may not use any PBJ logo or other proprietary graphic or trademark as part of the link without the express written permission of PBJ; and (iii) the link to the Site Link must be accompanied by a clear and prominent attribution at the point of origin indicating that the link is connected to the Site Link. For example, prominently positioning the Flasking™ trademark such that there is clear association between the trademark and the destination of the link would be acceptable. You agree that you will not juxtapose the Flasking™ mark and the associated link with your name or any other material(s) in a manner which might create any confusion that there is any affiliation or association between PBJ, and you or any other person or entity. If PBJ, for any reason in its sole and absolute discretion, requests in writing that you remove any link or links to the Homepage, you agree to promptly comply. You agree that if you create any link to the Site Link that you will not employ any technology that results in the placement of content from the Site in a frame and/or a reduced pop-up window and/or any other display mechanism which changes the Site content from how it normally appears in a browser.
PBJ reserves the right to investigate suspected violations of these Terms, though it undertakes no obligation to do so. If PBJ becomes aware of a possible violation, PBJ may initiate an investigation which may include gathering information from you and/or other entities involved and the complaining party. If PBJ believes, in its sole discretion, that a violation of these Terms has occurred, it may take responsive action. Such action may include, but is not limited to, temporary or permanent blocking of your access to the Site and/or deleting any materials from PBJ's system. PBJ, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violations of these Terms could also subject you to criminal or civil liability. PBJ reserves the right to release the contact information of users involved in violations of system security to system administrators at other sites, in order to assist them in resolving security incidents. PBJ intends to cooperate fully with any law enforcement officials or agencies in the investigation of any violation of these Terms or of any applicable laws.
If you breach these Terms and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Site, you acknowledge that you will have caused substantial harm to PBJ, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay PBJ $50.00 for each such unsolicited email, instant message or other unsolicited communication you send through the Site.
10. USER CONTENT
10.1 User Content in Publicly Accessible Areas. You retain all of your ownership rights in your User Content (as defined below). However, by submitting, posting, uploading, downloading, displaying, performing, transmitting, or otherwise distributing information or other content ("User Content") to an area of the Site that is intended by PBJ to be publicly accessible, if applicable, including without limitation any bulletin boards, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to exchange thoughts and opinions with other members of the public, you are: (i) granting PBJ, and its affiliates, a worldwide, royalty-free, perpetual, sublicensable, transferable, non-exclusive, non-revocable license to use the User Content in connection with the operation of PBJ, and its affiliates, including without limitation, the right to use, host, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat the User Content; (ii) representing and warranting that you own the rights to the User Content or are otherwise authorized to post, upload, display, perform, transmit, or otherwise distribute User Content. You will not be compensated for any User Content. All User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated. Always use caution when posting any personally identifying information about yourself, your children or other individuals on the Site.
10.2 Responsibility for User Content. You are solely responsible for all User Content that you upload or otherwise transmit via the Site, and for confirming the sufficiency and reliability of any User Content posted by others that you may use or rely upon. PBJ does not control or endorse any User Content, or any opinion, recommendation, or advice expressed therein, uploaded or otherwise transmitted by you or other users via the Site and, as such, does not guarantee the accuracy, integrity or quality of such User Content. PBJ expressly disclaims any liability in connection with User Content. PBJ and its designees shall have the right (but not the obligation) in their sole discretion to refuse or to remove any User Content contained on the Site at any time for any reason with or without notice. Always use caution when posting any personally identifying information about yourself or your children on the Site.
10.3 Monitoring of User Content. PBJ generally does not pre-screen User Content. However, PBJ reserves the right (but undertakes no duty) to do so and decide whether any User Content is appropriate and/or complies with these Terms. PBJ may remove any User Content and/or terminate a User's access to the Site for posting or publishing any material in violation of these Terms, or for otherwise violating these terms (as determined by PBJ in its sole and absolute discretion), at any time and without prior notice. PBJ may also terminate a User's access to the Site if PBJ has reason to believe the User is a repeat offender. If PBJ terminates your access to the Site, PBJ may, in its sole and absolute discretion, remove and destroy any data submitted by you to the Site.
10.4 User Content Disclaimer. YOU UNDERSTAND THAT WHEN ACCESSING OR USING THE SITE, YOU MAY BE EXPOSED TO USER CONTENT FROM A VARIETY OF SOURCES, AND THAT PBJ IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO USER CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST PBJ WITH RESPECT THERETO, AND AGREE TO INDEMNIFY AND HOLD PBJ, ITS PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS, HARMLESS TO THE FULLEST EXTENT ALLOWED BY LAW REGARDING ALL MATTERS RELATED TO YOUR USE OF THE SITE. You hereby waive California Civil Code $1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
11. USER SUBMISSIONS
Any comments, feedback, suggestions and ideas disclosed, submitted or offered to PBJ in connection with your use of the Site (collectively "Submissions") shall be owned exclusively by PBJ. You agree that PBJ shall: (i) not be under any obligation of confidentiality, express or implied, with respect to the Submissions; (ii) be entitled to use or disclose Submissions for any purpose, without restriction worldwide; and (iii) not owe you any compensation or reimbursement of any kind under any circumstances for use or disclosure of Submissions.
12. THIRD PARTY SERVICES AND SITES
The Site may provide links to other websites or resources. Your business dealings with any Third Party, including without limitation any website or Third Party Content found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations, associated with such dealings, are solely between you and such Third Party. PBJ MAKES NO ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE QUALIFICATIONS, CREDENTIALS, EXPERTISE, CREDIT WORTHINESS, ACCURACY OF INFORMATION, INSURANCE, LICENSURE, BOND, GOODS, SERVICES OR SITES PROVIDED BY SUCH THIRD PARTY OR OF OTHER INFORMATION FOUND ON OR THROUGH THE SITE OR OTHERWISE MADE AVAILABLE BY PBJ. YOU ARE SOLELY RESPONSIBLE FOR INDEPENDENTLY SELECTING ANY THIRD PARTY WITH WHOM YOU CHOOSE TO CONDUCT BUSINESS, HIRE, OR OTHERWISE INTERACT WITH. PBJ SHALL NOT BE RESPONSIBLE IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF: (I) ANY DEALINGS OR TRANSACTIONS BETWEEN YOU AND ANY THIRD PARTY OR AS THE RESULT OF THE PRESENCE OF SUCH THIRD PARTY, OR A LINK TO SUCH THIRD PARTY, THROUGH THE SITE; (II) ANY INSUFFICIENCY OF OR PROBLEMS WITH ANY SUCH THIRD PARTY'S BACKGROUND, INSURANCE, CREDIT OR LICENSING; OR (III) THE QUALITY OF SITES PERFORMED BY ANY SUCH THIRD PARTY OR ANY OTHER LEGAL LIABILITY ARISING OUT OF OR RELATED TO THE PERFORMANCE OF SUCH SITES. In the event that you have a dispute with any such third party, you release PBJ, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Unless expressly provided otherwise, these Terms govern your use of any and all Third Party Content. You hereby waive California Civil Code $1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
13. STORAGE AND ACCESS
PBJ may, in its sole discretion: (i) limit the duration and frequency of your access to the Site; (ii) delete accounts that are inactive for an extended period of time; and/or (iii) delete any materials you upload to the Site. PBJ shall have no responsibility or liability for the deletion or failure to store any account, messages, postings, communications or other content maintained or transmitted by or to the Site. You are solely responsible for maintaining all appropriate backup of files and data stored on the Site and/or on PBJ servers.
PBJ may, in its sole discretion and without prior notice, (i) revise these Terms; (ii) modify the Site; and (iii) discontinue any of the Site, or any of its constituent parts, including, without limitation, any products offered through, or features of, the Site, at any time. PBJ shall post any revision to these Terms, and the revised Terms shall be effective immediately on such posting. You agree to review these Terms and other online policies posted on the Site periodically to be aware of any revisions. Your continued use of any of the Site shall constitute your acceptance of the revised Terms. If you do not agree to any of such changes, you must immediately terminate your account (if applicable) and immediately cease all access and use of the Site. You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to these Terms.
You acknowledge and agree that PBJ may at any time in its sole discretion terminate or suspend your access to and use of the Site, or any part thereof, with or without notice, if you engage in any conduct that PBJ believes, in its sole discretion: (i) violates any provision of these Terms; (ii) violates the rights of PBJ or any third party; or (iii) is otherwise inappropriate for continued access and use of the Site. You agree that upon termination of these Terms and/or your right of access to the Site, PBJ may delete all files and information related to your account (if applicable), and may bar your access to your account (if applicable), and the Site, and that you will immediately destroy any PBJ IP (as defined below) in your possession or control.
16. PROPRIETARY RIGHTS
The design of the Site and all text, graphics, information, content, and other material displayed on or that can be downloaded from or through the Site are protected by copyright, trademark, trade dress and other laws and may not be used or downloaded except as permitted in these Terms or with prior written permission of the owner of such material and may not be used in connection with any product or Site that is not affiliated with PBJ, in any manner that is likely to cause confusion among customers, in any manner that dilutes the rights of PBJ, nor in any manner that disparages or discredits PBJ. The software, technology components and contents of the Site are copyrighted. All rights not expressly granted hereunder are reserved. You agree that as between the parties, PBJ is the exclusive owner of the Site, Software and all constituent parts, including without limitation, all software code, all photographs, videos and any other content on the Site (excluding User Content), HTML scripts, the uniform resource locators (URL's) for the Site, the organization and layout of the Site, all PBJ trademarks (including without limitation Flasking™ and the Flasking logo), trade names, service marks, trade dress and logos, all enhancements and improvements thereto, and derivatives thereof, and all patent, copyright, trademark, trade secret, trade dress and other intellectual property rights therein throughout the world (collectively the "PBJ IP"). Any goodwill attached to, or generated by, such PBJ IP is owned exclusively by PBJ, or its licensors, and shall inure solely to the benefit of PBJ, or its licensors. Nothing contained herein or on the Site should be understood as granting you any right or license to any of the PBJ IP, except as expressly granted herein. All rights not expressly granted herein are reserved by PBJ, or its licensors. PBJ, or its licensors, retains full and complete title to the PBJ IP. You shall not: (i) use or copy the PBJ IP in any manner not specifically set forth herein; (ii) include PBJ IP in your corporate name, within a domain name or within any part of URL's; (iii) obtain, use, register, or otherwise acquire any trade names, trademarks, service marks, and/or trade dress that are confusingly similar to PBJ IP; (iv) have or purport to have any claim of ownership in the PBJ IP; or (v) sell, redistribute, transfer, sublicense or reproduce the PBJ IP, nor may you decompile, reverse-engineer, disassemble, or otherwise convert any of the PBJ IP to a human-perceivable form. These Terms do not limit any rights that PBJ may have under trade secret, copyright, patent, trademark or other laws. You acknowledge and agree that the Site contains proprietary information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in any sponsor advertisements or information that may have been presented to you through the Site or its advertisers, if any, may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Other trademarks that appear on the Site are the property of their respective owners. Any images of persons or personalities contained on or accessible through the Site are not an indication or endorsement of PBJ or the Site, unless otherwise indicated.
17. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND THE PRODUCTS AVAILABLE THEREIN ARE AT YOUR SOLE RISK. THE SITE AND THE PRODUCTS AVAILABLE THEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES CONTAINED ON THE SITE MAY INCLUDE INACCURACIES, ERRORS AND OMISSIONS. TO THE FULLEST EXTENT PERMITTED BY LAW, PBJ, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS: (A) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; (B) MAKE NO WARRANTY THAT (I) THE SITE OR THE PRODUCTS AVAILABLE THEREIN WILL MEET YOUR REQUIREMENTS, (II) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) ANY PRODUCT, SERVICE OR INFORMATION OBTAINED FROM THE SITE WILL BE ACCURATE, APPROPRIATE, COMPLETE, CORRECT, RELIABLE, SUFFICIENT OR TIMELY, (IV) THE QUALITY OF ANY PRODUCTS, SERVICE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SITE WILL BE FIXED; AND (C) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE SITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PBJ MAKES NO WARRANTIES TO THOSE DEFINED AS "CONSUMERS" IN THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENTS ACT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF CONTENT THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. PBJ IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PBJ OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PBJ, ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE FOR AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL ACTUAL, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, INTERRUPTION OF BUSINESS, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SITE OR OTHER WEBSITE(S) YOU MAY ACCESS THROUGH THE SITE, CONTENT NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION, GOODWILL, USE, CONTENT OR OTHER INTANGIBLE LOSSES (EVEN IF PBJ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE; (II) ANY INFORMATION, PRODUCTS AND SERVICES OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF OR RELATED TO THE USE OF THE SITE; (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND/OR SERVICES RESULTING FROM ANY ERROR OR DEFICIENCY RELATED TO ANY GOODS, CONTENT, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (VI) DEFECT, FAILURE, OR OTHER INADEQUACY OF ANY PRODUCT OR CONTENT AT THE SITE, INCLUDING WITHOUT LIMITATION CLAIMS THAT ARE DUE TO NORMAL WEAR, PRODUCT MISUSE, ABUSE, PRODUCT MODIFICATION, IMPROPER PRODUCT SELECTION, NON-COMPLIANCE WITH ANY REGULATIONS OR CODES, OR MISAPPROPRIATION; (VII) INJURY TO PERSON OR PROPERTY RESULTING FROM OR RELATED TO YOUR ACCESS TO AND/OR USE OF THE SITE; (VIII) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IX) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (X) ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, SPYWARE, ADWARE, OR OTHER ACTUALLY OR POTENTIALLY HARMFUL CODE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE; (XI) AND/OR (XI) ANY OTHER MATTER RELATING TO THE SITE AND/OR THE PRODUCTS.
IN NO EVENT SHALL THE LIABILITY OF PBJ, ITS OFFICERS, EMPLOYEES, AGENTS, AND/OR LICENSORS, TO YOU OR TO ANY THIRD PARTY EXCEED FIFTY DOLLARS ($50). EXCEPT AS PROVIDED IN THE FOREGOING SENTENCE, YOU SHALL NOT BE ENTITLED UNDER LOCAL LAW OR OTHERWISE TO RECEIVE ANY PAYMENT FROM PBJ, ITS OFFICERS, EMPLOYEES, AGENTS AND/OR LICENSORS, WHETHER FOR ACTUAL, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS OR EXPENSES AS A RESULT OF EXPIRATION OR TERMINATION OF THESE TERMS, YOUR ACCOUNT (IF APPLICABLE), OR YOUR ACCESS TO THE SITE, ALL OF WHICH YOU EXPRESSLY WAIVE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF THIS SECTION (LIMITATION OF LIABILITY) HAS MATERIALLY INDUCED PBJ TO ENTER INTO THESE TERMS AND PERMIT YOU ACCESS TO THE SITE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, PBJ'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU SPECIFICALLY ACKNOWLEDGE THAT PBJ, ITS OFFICERS, EMPLOYEES, AGENTS AND LICENSORS, SHALL NOT BE LIABLE FOR USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
You agree to defend, indemnify and hold PBJ, its parent, subsidiaries, affiliates, directors, officers, employees, agents, partners and licensors, harmless from and against any and all claims, demands, losses, liability, costs and expenses (including but not limited to attorneys' fees) arising from your User Content, your use of the Site, your connection to the Site, your violation of the terms of these Terms, or your violation of any third party's rights, including but not limited to infringement of any intellectual property right, violation of any proprietary right and invasion of any privacy rights. This indemnification obligation will survive the termination of your account (if applicable), your access to the Site, your relationship with PBJ, and/or these Terms.
20. CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
PBJ has in place certain legally mandated procedures regarding allegations of copyright infringement occurring on the Site. PBJ has adopted a policy that provides for the immediate suspension and/or termination of any Site user who is found to have infringed on the rights of PBJ or of a third party, or otherwise violated any intellectual property laws or regulations. PBJ's policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want PBJ to delete, edit, or disable the material in question, you must provide PBJ with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit PBJ to locate the material; (d) information reasonably sufficient to permit PBJ to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to PBJ's designated agent at:
Attn.: Copyright Agent
PBJ Enterprises, LLC
117 W. 9th Street, #1002
Los Angeles, CA 90015
21. GENERAL INFORMATION
21.1 Entire Agreement
These Terms and any documents referenced herein constitute the entire agreement between you and PBJ regarding their subject matter and govern your use of the Site (including, without limitation, all purchases made through the Site), superseding any prior agreements or understandings between you and PBJ (including, but not limited to, any prior versions of these Terms) with respect to its subject matter. You also may be subject to additional terms and conditions that may apply when you use affiliate or other PBJ services or products, third-party content or third-party software. In the event any term contained in these Terms conflicts with any other term contained in any other agreement referenced in these Terms, these Terms shall control. Except as otherwise provided in these Terms, these Terms may only be modified in a writing signed by an authorized officer of PBJ. The language in these Terms shall be interpreted as to its fair meaning and not strictly for or against any party.
21.2 Consent to Email Communications
You consent to receive communications from us electronically and agree that we may communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
21.3 Assignment; Waiver
You may not assign these Terms or any rights granted herein. PBJ may assign or transfer these Terms or its rights or obligations hereunder without notice and without your prior approval. These Terms are for the sole benefit of the parties hereto and do not create any third-party beneficiaries, whether intended or incidental. These Terms will inure to the benefit of PBJ and its successors and assigns. The failure of PBJ to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.
21.4 Governing Law; Disputes
THE VALIDITY, CONSTRUCTION, INTERPRETATION, AND PERFORMANCE OF THESE TERMS WILL BE EXCLUSIVELY GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF CALIFORNIA, EXCEPT AS TO ITS PRINCIPALS OF CONFLICTS OF LAWS, AND WITHOUT REGARD TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF THE SITE. PBJ RESERVES THE RIGHT, BUT HAS NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS OF THE SITE. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, PRODUCTS, SERVICES OR THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED NOTWITHSTANDING ANY STATUTE OR LAW TO THE CONTRARY. ANY CONTROVERSY, CLAIM, DISPUTE OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THEIR SUBJECT MATTER, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, SHALL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ACTIONS ARE NOT PERMITTED. YOU AND PBJ 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 PROCEEDING. THE PARTIES AGREE THAT THESE TERMS DO NOT CONSTITUTE A CONTRACT FOR THE SALE OF GOODS; THEREFORE, THESE TERMS WILL NOT BE GOVERNED BY ANY CODIFICATION OF ARTICLE 2 OR 2A OF THE UNIFORM COMMERCIAL CODE, OR ANY CODIFICATION OF THE UNIFORM COMPUTER INFORMATION TECHNOLOGY ACT ("UCITA"), OR ANY REFERENCES TO THE UNITED NATIONAL CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
21.5 Injunctive Relief
You hereby acknowledge that a breach of these Terms may cause irreparable harm and significant injury to PBJ that may be difficult to ascertain, and that a remedy at law may be inadequate. Accordingly, you agree that PBJ shall be entitled, without waiving any additional rights or remedies otherwise available to PBJ at law or in equity and without the necessity of posting bond, to seek injunctive and other equitable relief in the event of a breach or intended or threatened breach by you. Notwithstanding anything to the contrary, PBJ shall be entitled to seek and obtain injunctive relief in any court of competent jurisdiction.
Except in the case of legal action brought by PBJ to obtain injunctive or other equitable relief of whatsoever kind, all of which may be brought in any court or other tribunal of competent jurisdiction, ANY CONTROVERSY, CLAIM, DISPUTE OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THEIR SUBJECT MATTER (COLLECTIVELY “CLAIMS”) SHALL BE SUBMITTED TO THE OFFICE OF THE AMERICAN ARBITRATION ASSOCIATION LOCATED IN LOS ANGELES COUNTY, CALIFORNIA, AND WILL BE SETTLED BY BINDING ARBITRATION TO OCCUR IN LOS ANGELES COUNTY, CALIFORNIA, SAID ARBITRATION TO BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES, IN EFFECT AT THE TIME OF THE ARBITRATION, THE LAWS OF THE STATE OF CALIFORNIA GOVERNING SUCH ARBITRATIONS, AND IN ACCORDANCE WITH THE TERMS OF THESE TERMS. SUCH ARBITRATION MUST BE FILED WITHIN TWELVE (12) MONTHS OF THE FIRST ACCRUAL OF THE CAUSE OF ACTION, AND THE PARTIES AGREE THAT THE STATUTE OF LIMITATIONS FOR ANY CAUSE OF ACTION BROUGHT PURSUANT TO, IN CONNECTION WITH, OR RELATING TO CLAIMS WILL BE TWELVE (12) MONTHS FROM THE FIRST ACCRUAL OF THE CAUSE OF ACTION, NOTWITHSTANDING ANY STATUTE TO THE CONTRARY. ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitrator will hear and determine any preliminary issue of law asserted by a party to be dispositive of any claim, in whole or in part, in the manner of a court hearing a motion to dismiss for failure to state a claim or for summary judgment, pursuant to such terms and procedures as the arbitrator deems appropriate. No witness or party may be required to waive any privilege recognized under California law. The hearing will not last longer than four (4) days unless all parties agree otherwise, with time to be divided equally between you and PBJ. The arbitrator will be an attorney, licensed to practice law in the State of California for no less than ten (10) years, with no less than five (5) years experience as an arbitrator. The parties and the arbitrator will treat all aspects of the arbitration proceedings, including, without limitation, discovery, testimony and other evidence, briefs, and the award, as strictly confidential and not subject to disclosure to any third party or entity, other than to the parties, the arbitrator, and the American Arbitration Association. The arbitrator must give full effect to the applicable law and to all provisions of these Terms, and is specifically divested of any power to add to, subtract from, modify or alter any of the terms or conditions of these Terms, or to render decisions in derogation thereof. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party's actual direct damages, except as may be required by statute. THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR RIGHTS TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. YOU AND PBJ 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 PROCEEDING. Further, unless both you and PBJ agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
The arbitrator will issue written findings of fact and conclusions of law, the decisions of the arbitrator will be binding and conclusive upon all parties involved, and judgment upon any decision of the arbitrator may be entered in any federal or state courts with jurisdiction.
21.7 Attorney Fees
In any litigation, arbitration or other proceeding by which one party either seeks to enforce its rights under these Terms (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under these Terms, in addition to any other relief to which the prevailing party may be entitled, the prevailing party will be entitled to recover its reasonable attorney fees, costs and expenses to resolve the dispute and to enforce the final judgment.
21.8 Legal Compliance
You agree to comply with all local laws and rules regarding online conduct and acceptable content. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of these Terms. The Site is controlled and operated by PBJ from its offices in the State of California, in the United States of America. PBJ makes no representation that any of the Site (including, without limitation, any products or services available on or through the Site) are available or appropriate for use outside of the United States of America. If you access the Site from outside the United States of America, you do so on your own initiative and must bear all responsibility for compliance with local laws, if applicable. Your use of or access to the Site should not be construed as PBJs purposefully availing itself of the benefits or privilege of doing business in any state or jurisdiction other than California.
If any provision(s) of these Terms, including without limitation, the warranty disclaimers and liability limitations set forth above, are found by a court of competent jurisdiction to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. The foregoing does not apply to the prohibition against class or representative actions that is part of the arbitration clause; if that prohibition is found to be unenforceable, the arbitration clause (but only the arbitration clause) shall be null and void.
21.10 Section Titles; Survival
The section titles in these Terms are for convenience only and have no legal or contractual effect. Sections 9 through 21 of these Terms, as well as any payment obligations to PBJ, shall survive any termination of your account (if applicable), your access to the Site, your relationship with PBJ, or these Terms.
21.11 Legal Equivalency
These Terms and any other electronic documents, policies and guidelines incorporated herein shall be: (i) deemed for all purposes to be a "writing" or "in writing", and to comply with all statutory, contractual, and other legal requirements for a writing; (ii) legally enforceable against any party hereto as a signed writing; and (iii) deemed an "original" when printed from electronic records established and maintained in the ordinary course of business. Any electronic documents introduced as evidence in any judicial, arbitration, mediation or administrative proceeding shall, if established and maintained in the ordinary course of business, be admissible to the same extent as business records in written form that are similarly established and maintained.