By accessing or using the Website, you are agreeing to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement.
THIS AGREEMENT INCLUDES A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, SECTION 15 BELOW DESCRIBES THE 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 PART OF A CLASS ACTION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT USE THE WEBSITE, DO NOT ORDER, AND DO NOT USE A FOS PRODUCT.
In order to use the Website, you must be 18 years or older and have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws. The Website is not intended for children under the age of 18 and no person under the age of 18 may use the Website. If you use the Website, you are affirming that you are at least 18 years old.
TREE PLANTING PROGRAM
Fos agrees to donate an amount of money to its tree planting partner, Trees for the Future, for every genuine email signup. This amount of money is what Trees for the Future requests to finance the planting of one single Tree. Trees for the Future is then expected to plant a tree on behalf of each donation made by Fos. All tree planting is being conducted exclusively by Trees for the Future, for the benefit of the local communities served by Trees for the Future.
Note, for the email signup to result in a donation by Fos to Trees for the Future, it must be a genuine signup. This means: 1) it is a genuine email used regularly for email correspondence by a human individual 2) the person signing up has not previously signed up 3) the email is being entered directly by the real owner of that email account and not by a third party 4) the email is entered by hand, by the owner of the account, and not using electronic or automated email entry tools.
The judgment of whether an email signup is genuine or not is solely at Fos’s discretion. Fos reserves the right to refrain from making a donation in respect of any non-genuine email entered for any reason whatsoever as determined in its sole discretion.
Trees for the Future is responsible for operating its Tree for the Future program and Fos shall not have any liability with respect to Tree for the Future’s actions or omissions. Fos’ sole obligation is to make the donations to Trees for the Future pursuant to the terms set forth herein.
AUTOMATIC RENEWAL TERMS
If you are placing an order online or by telephone as part of our automatic renewal program, your membership in the program will remain in effect until it is cancelled. If you sign up for an automatic renewal program on the Website in connection with your purchase, the payment card you provide will be charged the amount stated on the web page corresponding to the product you purchase, and your payment card will automatically be charged the same monthly amount every thirty (30) days thereafter.
IF YOU ARE A MEMBER OF OUR AUTOMATIC RENEWAL PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH SHIPMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF EACH SUCCESSIVE SHIPMENT OR INSTALLMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT. IF YOU WISH TO CANCEL YOUR PARTICIPATION IN OUR AUTOMATIC RENEWAL PROGRAM, YOU MAY DO SO BY CALLING A CUSTOMER SERVICE REPRESENTATIVE AT THE TELEPHONE NUMBERS LISTED ON THE WEBSITE UNDER CUSTOMER SERVICE.
You are obligated to provide current, complete, and accurate information for your billing account. You are responsible for promptly updating all information to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid. Changes to such information can be made by calling a customer service representative at the telephone numbers listed on the Website or by calling 1 (888) 659-4228.
You may return items in accordance with the Return Policy instructions that accompany your product shipments or, if you are uncertain about your right to return the product, you may also call Customer Service at 1 (888) 659-4228 for assistance. Fos will refund your payment when your product is timely returned (with an authorized RMA number) or cancelled, and within seven (7) business days of our receipt of the returned product if purchased using third-party credit, such as a Visa or MasterCard.
Subject to the limitations set forth herein, you may be able to upload any photographs, comments, video clips, reviews and other communications and content to the Website (“Your Content”). Unless we indicate otherwise, by posting or submitting Your Content to the Website, you grant Fos a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content, and the name submitted in connection with such content, throughout the world in any media now known or hereafter conceived. Fos and its affiliates are free to use any ideas, concepts or know-how contained in Your Content for any purpose whatsoever including, but not limited to, developing, manufacturing, distributing and marketing products using such information. Fos is under no obligation (i) to maintain Your Content in confidence; (ii) to pay to you or any third party any compensation for any Your Content; or (iii) to respond to any Your Content. You are and shall remain solely responsible for Your Content.
You represent and warrant that (a) you own or otherwise control all of the rights to Your Content; (b) that Your Content is accurate; and (c) that use of Your Content does not violate this Agreement and will not cause injury to any person or entity.
We will not be responsible or liable to you or to any third party for the content or accuracy of Your Content. Fos has the right, but not the obligation, to monitor and edit or remove any activity or content. Fos takes no responsibility and assumes no liability for Your Content or for any of Your Content posted by a third party.
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 exploitation whatsoever.
In using the Website, you further agree:
- (a) 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;
- (b) not to disrupt or interfere with any other user's enjoyment of the Website or affiliated or linked Website;
- (c) not to upload, post, or otherwise transmit through or on the Website any viruses or other harmful, disruptive, or destructive files;
- (d) not to use, frame, or utilize framing techniques to enclose any Fos trademark, logo, or other proprietary information (including the images found on the Website, the content of any text, or the layout/design of any page or form contained on a Website page) without Fos’ express written consent;
- (e) not to reverse engineer, or create derivative works based on the Website or any content (including, without limitation, any software) available through the Website.
- (f) not to use meta tags or any other “hidden text” utilizing an Fos name, trademark, or product name without Fos’ express written consent;
- (g) not to deep link to the Website without Fos’ express written consent;
- (h) not to create or use a false identity on the Website, share your account information, or allow any person besides yourself to use your account to access the Website;
- (i) not use the Website to collect or store personal data about others;
- (j) not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
- (k) not to post any material that is knowingly false or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, or is otherwise in violation of any law. You further agree not to post any copyrighted material unless the copyright is owned by you;
- (l) to be bound by the product submission policies of Fos, including that any product submission you may make to Fos will not be held in confidence by Fos and is not proprietary, that Fos may use the product submission and any aspect thereof for any purposes in Fos’ sole discretion; and
- (m) to comply with all applicable laws regarding your use of the Website.
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS AND LICENSE
You acknowledge that content available through the Website, including, without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos, and content provided by suppliers, sponsors, or third-party advertisers (“Intellectual Property Rights”), is protected by copyright, trademarks, patents, or other proprietary rights and laws. 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 using or placing an order via the Website, provided that you do not remove or obscure the copyright notice or other notices displayed on 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 Fos’ or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.
HEALTH DISCLAIMER REGARDING INFORMATION PROVIDED ON THE WEBSITE
THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) ON THE WEBSITE IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION BEFORE STARTING ANY NEW TREATMENT. WE SUGGEST CONSULTING WITH A PHYSICIAN BEFORE USING ANY FOS PRODUCTS.
DISCLAIMER OF WARRANTIES WITH RESPECT TO USE OF THE WEBSITE
EXCEPT WHERE INAPPLICABLE OR PROHIBITED BY LAW, INCLUDING IN THE STATE OF NEW JERSEY, 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, FOS 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. FOS DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT IT WILL BE FREE OF DEFECTS. FOS MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/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 AND/OR DATA. WE PROVIDE INFORMATION ON THE WEBSITE FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT MEANT AS A SUBSTITUTE FOR THE ADVICE OF A DOCTOR OR OTHER HEALTH CARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FOR DIAGNOSING OR TREATING A MEDICAL CONDITION. YOU SHOULD CAREFULLY READ ALL PRODUCT INSTRUCTIONS PRIOR TO USE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FOS OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN
LINKS TO OTHER WEBSITES THAT FOS DOES NOT CONTROL
PURCHASING ITEMS FROM US
Product Representations. Fos reserves the right to discontinue or change specifications, and prospectively change prices on products, in each case without incurring any obligation to you. Fos takes reasonable precautions to try to ensure that the prices quoted on the Website are correct, and to describe the items available on the Website as accurately as possible and to depict the most up to date packaging. However, when ordering products, please note that Fos does not warrant that product descriptions are accurate, complete, reliable, current, or error-free, or that product packaging depicted on the Website will match the actual product that you receive. If a product described on the Website is not as described when you receive it, or the packaging on the Website does not match the product you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with our Return Policy, which is listed on the Website under Customer Service. Fos’ descriptions of, or references to, products not owned by Fos do not imply endorsement of that product, or constitute a warranty by Fos.
Pricing Errors and Omissions. Please be aware that prices, availability and other purchase terms are subject to change. We make every effort to ensure the accuracy of the information on the Website and to correct errors once discovered. If we discover an error has occurred after your credit card has been charged and your order is canceled as a result of the error, your credit card will be refunded the full amount of your order.
Order Placement and Acceptance. If you order a product, payment must be received by Fos prior to Fos’ acceptance of the order. Fos may require additional information regarding your order if you have not provided all of the information required, and may cancel or limit an order any time after it has been placed.
Your order is expressly conditioned on acceptance of this Agreement. Once a properly completed order, your authorization, and a form of payment have been received, we will promptly locate the item(s) you have ordered to place them in line for shipment. All items are subject to availability. We will promptly inform you if the product(s) you have ordered are not available and we may offer you alternative product(s) of equal quality and value. Fos only accepts orders for personal use. You cannot resell items offered on the Website. If Fos discovers that you are placing orders with the intent to resell items offered on the Website, we may immediately cancel your order, suspend or terminate your account, and pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen cards, Fos will also report you to federal, state and/or local enforcements authorities.
Shipping and Risk of Loss. Fos will add applicable shipping and handling fees to your order. Unless otherwise noted, Fos will use commercially reasonable efforts to ship products within a reasonable time after receipt of your properly completed order. Although Fos may provide delivery or shipment timeframes or dates, you understand that those are Fos’ good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. If your order will be delayed (either from the date specified at the time of order or, if no date was specified, beyond 30 days from the date of your order, Fos will use reasonable good faith efforts to contact you. If Fos cannot contact you or you no longer wish to receive the item, Fos will cancel the order and promptly refund the amount tendered. Fos may reject orders where the stated delivery address is outside the United States.
Sales Tax. In the United States, Fos is required to collect applicable state and local sales tax on orders shipped to certain states. Taxes apply to most merchandise, but some states exclude certain items, like food products. Some taxing authorities also require the taxable amount to include any shipping and handling charges, while others charge sales tax only on merchandise. Fos is required to follow the rules of each state. Your final order total will include the appropriate state and local taxes.
Payment Information. In ordering products through the Website, you agree to provide only true, accurate, current, and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or for which you are authorized to provide. Fos shall have the right to cancel your order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to Fos, or for any other reason that we, in our sole discretion, deem appropriate.
International Orders. Fos may not directly sell certain Fos products in any jurisdiction other than the United States of America and Canada, as these products may not be approved for sale in other jurisdictions. While Fos may choose to accept orders for the purchase of its products from non-U.S. residents, the acceptance of such orders and the sale of such products will be subject to the following conditions:
- (a) You agree that the purchase of any Fos products by you, as a non-U.S. resident, shall be (i) ex works Fos’ facilities in the United States per Incoterms 2010, with all title risk and loss in the products passing to you in the United States; and (ii) for your own personal use only and not for further resale or distribution in any manner;
- (b) You agree not to order more than a ninety (90) day supply of any consumable products within any ninety (90) day period;
- (c) You hereby expressly authorize and direct Fos to load and ship the purchased products to your shipping address, and to contract on your behalf with a courier company for that purpose; and
- (d) You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties and import requirements from Fos’ facilities in the United States to your foreign shipping address.
For Canadian Orders only: By ordering goods from Fos, you hereby authorize a licensed Canadian customs broker chosen by Fos to act as your agent, and to transact business with Canada Border Services Agency (CBSA) to clear your merchandise, account for applicable duties and taxes, to return merchandise to Fos and prepare and submit refund claims on your behalf for any merchandise that you return. You understand that CBSA will send any refund of duties and taxes that were paid on the returned merchandise to the customs broker, and that you will obtain the refund directly from Fos. You also authorize the customs broker to endorse any refund check issued by CBSA in your name so that Fos can be reimbursed.
ELECTRONIC COMMUNICATIONS, SIGNATURES AND AGREEMENTS
The information communicated on the Website constitutes an electronic communication. When you communicate with Fos through the Website or via other forms of electronic media, such as e-mail, you are communicating with Fos electronically. You agree that Fos may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that Fos provides 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 (e.g., by Fos or you).
You further acknowledge and agree that by clicking on the button labeled “SUBMIT”, “DOWNLOAD”, “I ACCEPT” or such similar links as may be designated by Fos, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement and any hyperlinks contained herein.
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 (the “E-Sign Act”) or other similar statutes, 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 SERVICES OFFERED BY FOS. 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.
COMMUNICATIONS WITH FOS
To the extent permissible by applicable law, you acknowledge that telephone calls to or from Fos are monitored and recorded and you agree to such monitoring and recording. You verify that any contact information provided to Fos, including, but not limited to, your mailing address, shipping address, e-mail address, residential phone number, and mobile phone number is true and accurate. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to Fos. You acknowledge that by voluntarily providing your telephone numbers to Fos, you expressly agree to be contacted at the telephone numbers you provide.
You consent to receive e-mails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of Fos relating to this Agreement, any purchase or transaction with Fos, matters related to your account (including debt collection), and promotions regarding Fos products. These communications may be made by or on behalf of Fos, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these calls by your telephone carrier and that Fos will not be responsible for these charges.
Fos may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing or shipping addresses and phone numbers provided by you directly or obtained through other lawful means, such as skip tracing. You agree to provide Fos notice within 30 days of any change to your contact information by writing to PO Box 29502 #94699, Las Vegas, NV 89126; Attention: Fos Customer Service or emailing [email protected] Your consent to this communications provision is not required to make any purchase with Fos.
LIMITATION ON FOS’ LIABILITY
EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, SUCH AS NEW JERSEY, YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL FOS, ITS SUPPLIERS, PARENTS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES, AGENTS OR OTHER REPRESENTATIVES 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 (1) THE USE OF, OR THE INABILITY TO USE, THE WEBSITE; (2) THE USE OF, OR THE INABILITY TO USE, ITEMS PURCHASED ON THE WEBSITE; OR (3) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR ITEMS.
BECAUSE SOME JURISDITIONS (INCLUDING, WITHOUT LIMITATION, THE STATE OF NEW JERSEY) PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU
Except where otherwise inapplicable or prohibited by law, including in the state of New Jersey, you agree to indemnify and hold harmless Fos, its directors, officers, employees, agents, co-branders, suppliers, subsidiaries, parents, 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 your breach of this Agreement.
TERMINATION OF WEBSITE
Fos may, in its sole discretion, and at any time, terminate or suspend its operation of the Website or your use of the Website, if Fos reasonably believes that you have breached any of the terms and conditions of this Agreement. Following termination, you will not be permitted to use the Website and Fos may, in our discretion, cancel any outstanding orders for the product.
PRE-DISPUTE, MANDATORY BINDING ARBITRATION, AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATING TO ANY PURCHASE YOU MAKE VIA THIS WEBSITE, ANY INFORMATION YOU PROVIDE VIA THIS WEBSITE, THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE, OR ALLEGED BREACH), AND YOUR USE OF THE WEBSITE WILL BE EXCLUSIVELY RESOLVED UNDER CONFIDENTIAL BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO BRING A LAWSUIT IN COURT AGAINST FOS, INCLUDING THE RIGHT TO A TRIAL BY JURY, AND RIGHTS AVAILABLE IN A COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. 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 DECIDED IN A LAWSUIT, IN COURT, BY A JUDGE OR JURY TRIAL.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF 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.
Exceptions to Binding Arbitration. As an exception to binding arbitration, you and Fos 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. Fos 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.
Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against Fos, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by U.S. Mail to Fos, Inc., PO Box 29502 #94699 Las Vegas, NV 89126; Attn: General Counsel. You agree to negotiate with Fos in good faith about your problem or dispute. If your problem or dispute is not resolved to your satisfaction within 60 days after Fos’ receipt of your written dispute, you agree to the dispute resolution provisions below.
Commencement of Arbitration. Except where otherwise prohibited by law (including, without limitation, the State of New Jersey), You and Fos agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.
Arbitration Location. For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and Fos agree.
Applicable Law. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of New York, without regard to principles of conflict of laws thereof
Sponsoring 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 and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal.
Arbitration Fees. Fos shall pay for all filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses. However, if Fos is the prevailing party in the arbitration, applicable law may allow the arbitrator to award attorneys’ fees and costs to Fos.
Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. 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.
Enforceability. This provision survives termination of your account or relationship with Fos, 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.
Miscellaneous. This provision is the entire arbitration agreement between you and Fos and shall not be modified except in writing by Fos.
Amendments. Fos reserves the right to amend this arbitration provision at any time. Your continued use of any Fos Website, purchase of an Fos product, or use or attempted use of an Fos product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, Fos will provide you notice. Your continued use of any Fos Website, purchase of an Fos product, or use or attempted use of an Fos product, after receiving such notice is affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF AN FOS PRODUCT (WHICHEVER COMES FIRST) BY WRITING TO FOS, Inc., PO BOX 29502 #94699, LAS VEGAS, NV 89126; ATTN: GENERAL COUNSEL. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY FOS PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE OF FOS PRODUCTS. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
EXCLUSIVE VENUE FOR OTHER CONTROVERSIES
Any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the state and federal courts located in New York City, New York, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
REMEDIES FOR FOS
Notwithstanding the arbitration agreement contained in this Agreement, in order to avoid irreparable injury to Fos, in the event of any breach or threatened breach by you of the provisions of this Agreement, we shall be entitled to seek an injunction and other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Fos from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
Fos® is a trademark of Fos, Inc. All other trademarks and service marks displayed on the Website are the property of Fos or their respective owners. You may not use or display any trademarks or service marks owned by Fos without Fos’ prior written consent. You may not use or display any other trademarks or service marks displayed on the Website without the permission of their owners.
It is Fos’ policy to respect the copyright and intellectual property rights of others. Fos may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, Fos may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Fos complies 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 Fos’ Copyright Agent 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. You should identify the material with information reasonably sufficient to allow Fos to locate the material.
- 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 inquiries regarding infringement issues by email to [email protected]
OTHER IMPORTANT TERMS