Terms and Conditions
Phillips™ Pet Food and Supplies Website Terms and Conditions and Mobile Application End-User License Agreement
- Your Consent to the Agreement
- Requirements; Necessary Equipment; Data Charges
- Registration; Termination of Accounts
- Compliance with Applicable Law
- The App
- Endless Aisles™
- Social Media Pages
- Representations and Warranties
- Legal Warning
- Disclaimer of Warranties
- Limitation of Liability
- Third-Party Websites
- Editing, Deleting and Modification
- Use of User Information
- Dispute Resolution Provisions
- Electronic Signatures
- Technical Difficulties
- Notice to U.S. Government Users
- Contact Us
Last Updated: January 14, 2019
NOTICE: THE AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES, LIMITATIONS OF LIABILITY, RELEASES AND INDEMNIFICATION PROVISIONS.
1. Your Consent to the Agreement
The Phillips™ Offerings (as defined below) are owned and operated by Phillips Feed Service, Inc. (“Phillips™,” “we,” “our” or “us”). Each end-user (“User,” “you” or “your”) agrees to the terms of the Agreement, in their entirety, when she/he/it: (a) accesses or uses the Phillips™ websites located at www.phillipspet.com and www.shop.phillipspet.com (collectively, the “Site”); (b) downloads, attempts to download and/or uses the Phillips™ ordering mobile application (the “App”) and associated Software (as defined below), as made available on the iPhone®, iPad® and iPod Touch®, as well as Android® and other mobile devices, where and to the extent available (collectively, “Mobile Devices”) by and through the Apple® App Store, the Google Play® store (where available) and other applicable venues (collectively, “Download Venues”); (c) accesses and/or views any of the videos, audio, text, photographs, graphics, artwork, information and/or other content featured on the Site, as made available by Phillips™ (collectively, the “Content”); (d) accesses information pertaining to, and/or gains access to, the Endless Aisles Special Ordering™ platform/API, which contains product fulfilment solutions for retail outlets, as same is provided by our corporate affiliate, PHIDO, Inc. (“Endless Aisles™”); (e) utilizes the contact form and/or other functionality as a means to request being contacted by Phillips™ (collectively, “Contact Services”); and/or (f) accesses links to Phillips’s™ social media pages/accounts on third-party social media websites including, but not limited to, Facebook®, LinkedIn® and Twitter® (collectively, “Social Media Pages”). Users can purchase wholesale pet-related products and/or services as featured on or through the Site and/or App (“Wholesale Products”). End-user customers of Users (“Customers”) purchase wholesale pet-related products and/or services as featured on the Endless Aisles™ platform Customer interface, with the associated fulfilment and shipping handled by Phillips™ (collectively, the “Consumer Products” and together with the Wholesale Products, the “Products”). The Site, App, Content, Endless Aisles™ platform, Contact Services, Social Media Pages and Products shall be referred to, collectively, as the “Phillips™ Offerings.”
These Terms are effective as of the date set forth above. Please print the Agreement for your records. A printed version of the Agreement will be valid, enforceable, and admissible in judicial or administrative proceedings based upon or relating to the Agreement to the same extent and subject to the same conditions as a paper agreement that you sign manually. Violations of the Agreement may result in suspension or termination of your Account.
Apple®, Apple App Store®, iPhone®, iPad® and iPod Touch® are registered trademarks of Apple, Inc. (“Apple”). Facebook® is a registered trademark of Facebook, Inc. (“Facebook”). Android® and Google Play® are registered trademarks of Google, Inc. (“Google”). LinkedIn® is a registered trademark of LinkedIn Corporation (“LinkedIn”). Twitter® is a registered trademark of Twitter, Inc. (“Twitter”). Please be advised that the Phillips™ is not in any way affiliated with Apple, Facebook, Google, LinkedIn or Twitter, and the Phillips™ Offerings are not endorsed, administered or sponsored by any of the foregoing entities.
We may amend the Agreement from time to time at our sole discretion, without specific notice to our Users; provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and (ii) any amendment or modification to billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification. The latest Agreement will be posted on the Site and by and through the App, and Users should review the Agreement in its entirety prior to using any Phillips™ Offerings. By a User’s continued use of any Phillips™ Offerings, that User hereby agrees to comply with all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
Please be advised that Phillips™ does not itself manufacture or produce the Products. Further, the Products contain descriptions which are provided directly by the manufacturers or distributors of such Products. Phillips™ does not represent or warrant that the descriptions of such Products are accurate or complete. As a result, Phillips™ has no control over the quality, safety or legality of the Products.
Phillips™ attempts to be as accurate as possible with Product descriptions and prices. However, Phillips™ does not warrant that Product descriptions or prices are 100% accurate. In the event a Product is listed at an incorrect price or with incorrect information due to typographical error, error in pricing or Product information received from Phillips’s™ suppliers, Phillips™ shall have the right to refuse or cancel any orders placed for such Products. Phillips™ shall have the right to refuse or cancel any such order, whether or not the order has been confirmed and whether or not your credit or debit card has been charged.
3. Requirements; Necessary Equipment; Data Charges
The Phillips™ Offerings are available only to individuals who: (a) can enter into legally binding contracts under applicable law; (b) are eighteen (18) years of age or older (or the applicable age of majority, if greater than eighteen (18) years of age in their respective jurisdiction); and (c) are acting in their capacity as duly authorized representatives of a valid business entity (“Entity”) (collectively, “Usage Requirements”). The Phillips™ Offerings are not intended for individuals who do not satisfy the Usage Requirements, including individuals under eighteen (18) years of age (or the applicable age of majority, if greater than eighteen (18) years of age in their respective jurisdiction), individuals who cannot enter into legally binding contracts under applicable law and/or individuals attempting to register on behalf of an Entity who are not duly authorized representatives of that Entity. If a User does not satisfy the Usage Requirements in their entirety, that User does not have permission to access or use the Phillips™ Offerings. If you do not satisfy all of the Eligibility Requirements, you may not access the Phillips™ Offerings.
You shall be responsible, at all times, for ensuring you have an Internet connection, computer/Mobile Device, mobile telephone number, up-to-date Internet browser versions, a functioning e-mail account, applicable software with antivirus protection, applicable hardware and/or other equipment necessary to access the Phillips™ Offerings. Phillips™ does not guarantee the quality, speed or availability of the Internet connection associated with your mobile device and/or computer. Phillips™ does not guarantee that the Phillips™ Offerings can be accessed: (i) on all Mobile Devices; (ii) through all wireless service plans; (iii) in connection with all Internet browsers; and/or (iv) in all geographical areas. Standard messaging, data and wireless access fees may apply to your use of the App and other Phillips™ Offerings. You are fully responsible for all such charges and Phillips™ has no liability or responsibility to you, whatsoever, for any such charges billed by your wireless carrier.
In addition to the foregoing, individuals are not permitted to access the Phillips™ Offerings with a “Jailbroken Mobile Device.” For purposes of the Agreement, a Jailbroken Mobile Device is a Mobile Device that runs: (A) Apple’s® iOS operating system (including the iPhone®, iPod touch®, iPad® and second-generation Apple TV®) that has had any of its iOS-based software restrictions removed via any procedure that is not fully endorsed and authorized by Apple®; and/or (B) Android® operating system that has had any of its Android®-based software restrictions removed via any procedure not fully endorsed and authorized by the applicable Mobile Device manufacturer.
4. Registration; Termination of Accounts
In order to open an account (“Account”) and utilize certain aspects of the Phillips™ Offerings (including the App and Endless Aisles™ platform), each prospective User will be required to register with a customer service representative, via the Site and/or via the App, as applicable. In connection with the registration process, Phillips™ will collect the following information applicable to the User: (a) the name of the User’s Entity (as well as any applicable Entity’s trade name, the square footage of the Entity’s stores and business entity type (e.g., corporation, limited liability company, partnership, etc.)); (b) the Entity’s street address; (c) the Entity’s primary contact’s full name; (d) the Entity’s primary contact’s e-mail address;(e) the Entity’s primary contact’s telephone number; (f) the Entity’s primary contact’s fax number; (g) the Entity’s billing address; (h) the Entity’s federal tax ID number (“FEIN”); (i) the Entity’s sales tax exempt number (if any); (j) the primary type of business that the Entity engages in (e.g. pet store, vet clinic, kennel retail/non-retail, shelter and rescue, etc.); (k) whether the Entity is part of a chain of stores; (l) whether the Entity has a website and, if so, the website’s address; and/or (m) any other information requested on the applicable form (collectively, “Registration Data”). Each User agrees to provide true, accurate, current and complete Registration Data, as necessary, in order to maintain it in an up to date and accurate fashion. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete (or if the Registration Data becomes untrue, inaccurate, not current or incomplete), or Phillips™ has reasonable grounds to suspect such Registration Data is untrue, inaccurate, not current or incomplete, Phillips™ has the right to suspend or terminate your account and refuse any and all current or future use of the Phillips™ Offerings (or any portion thereof).
Further, Phillips™ may reject a User’s form and/or terminate a User’s Account at any time and for any reason, in its sole discretion. Such reasons may include, without limitation, where: (i) Phillips™ believes that such User is in any way in breach of the Agreement; (ii) Phillips™ believes that such User is engaged in any improper and/or unauthorized conduct in connection with the Phillips™ Offerings; and/or (iii) Phillips™ believes that such User is, at any time, engaged in any activity by and/or through the Phillips™ Offerings that may violate any applicable law.
As part of the registration process, Users will be provided with, or must select, a user name and/or password for both the Site and the App. If the user name(s)/password(s) that a User requests is/are not available, that User will be asked to supply another user name/password. If Phillips™ provides a User with a user name/password, that User can change that user name and/or password, or the one that the User selected during registration, at any time through her/his Site and/or App Account settings, as applicable. We may, in our sole discretion, reject, change, suspend and/or terminate any user name. Profanity, obscenities, or the use of **asterisks** or other “masking” characters to disguise such words, is not permitted. Impersonating other Users is prohibited. Each User agrees to notify Phillips™ of any known or suspected unauthorized use(s) of her/his Account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of her/his user name(s)/password(s). Each User shall be responsible for maintaining the confidentiality of her/his user name(s)/password(s) and Account. Each User agrees to accept responsibility for all activities that occur through use of her/his user name(s)/password(s) and Account, including any charges incurred therethrough. Any fraudulent, abusive or otherwise illegal activity engaged in by any User, or any entity or person with access to that User’s user name(s)/password(s) and/or Account may be grounds for termination of that User’s Account, at Phillips’™ sole discretion, and that User may be reported to appropriate law enforcement agencies.
5. Compliance with Applicable Law
User represents and warrants that it and its marketing and commercial efforts associated with the Site, App, Products and/or the Endless Aisles™ platform, as well as its business practices in general, shall fully comply with all applicable local, state, national, federal and international laws including, without limitation, any and all privacy laws, the CAN-SPAM Act of 2003, as amended, as well as other state e-mail marketing laws, Canada’s Anti-Spam Legislation (“CASL”), the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (“TCPA”) and the Amended Telemarketing Sales Rule (“ATSR”), 16 CFR 310 et seq. (collectively, “Applicable Law”).
6. The App
(a) Functionality. The App (together with the content included therein, any associated documentation, and any application program interfaces, license keys, and patches, updates, upgrades, improvements, enhancements, fixes and revised versions of any of the foregoing, collectively the “Software”) enables Users to: (i) browse the catalogue of Products; (ii) create shopping carts of selected Products; (iii) save draft Product orders; (iv) place Product orders (with payment to be handled by separate invoice sent to the subject User); and (v) manage their Accounts, including checking on the status of prior Product orders. In order to facilitate the services provided through the App, the App may request permission to use the applicable Mobile Device’s camera (for barcode scanning), as well as permission to deliver push notifications to the applicable Mobile Device.
(b) Installation. Phillips™ believes in providing Users with clear, concise and complete disclosure before Users download and install the App, including a description of the primary functions of the App. The App requires User consent prior to installation. Phillips™ does not believe that Users should be deceived into downloading or installing the App. In order to download the App, as made available on the iOS® and Android® mobile platforms, you must either utilize the options made available: (i) on the Site; or (ii) via participating Download Venues.
(c) Uninstall. The App can be completely uninstalled in a straightforward manner and without requiring undue effort or skill, in most cases by using the traditional “add/remove” programs function contained within your Mobile Device. Please be advised that in some instances, you may be required to restart your Mobile Device before all remnants of the App are completely uninstalled and removed from your Mobile Device. If you experience any problems installing and/or uninstalling the App, please contact us via e-mail at: email@example.com.
THE APP IS NOT SPYWARE OR ADWARE. THE APP WILL NOT DELIVER ADVERTISEMENTS TO YOUR MOBILE DEVICE.
(d) Download Venues. The Agreement is entered into by and between you and Phillips™, and not with the applicable Download Venue that you use to access the App. As between Phillips™ and any participating Download Venue, Phillips™ is solely responsible for the App. No Download Venue has any obligation to furnish any maintenance and/or support services with respect to the App. The Download Venues are third-party owned and operated websites. Use of those venues shall be governed by the applicable venue’s agreements, terms and conditions. Phillips™ does not control the Download Venues or any of the actions, policies or decisions made by the operators of those venues. If you accessed or downloaded the App from the Apple® Store, then you agree to use the App only: (i) on an Apple®-branded product or device that runs iOS (Apple’s® proprietary operating system software); and (ii) as permitted by the “Usage Rules” set forth in the Apple® Store Terms of Service, as applicable.
(e) Remote Access, Updates and Bug Fixes. Phillips™ reserves the right (but is not obligated) to add additional features or functions to the existing App, and to provide technical support including bug fixes, error corrections, patches, new releases or any other component not specified within these Terms, from time-to-time. When installed on a User’s Mobile Device, the App periodically communicates with Phillips™ servers. Phillips™ may require the updating of the App residing on a User’s Mobile Device when Phillips™ releases a new version of the App, or when Phillips™ makes new features available. The aforementioned technical support and/or updates may occur automatically without prior notice, or upon prior notice to you, and may occur all at once or over multiple sessions, in Phillips’™ sole and absolute discretion. By downloading the App, you hereby consent to this remote access and these update/technical support services. Our access to your Mobile Device will be limited to providing support and/or updating the App. Where we are denied access for these purposes, your ability to utilize App-based Phillips™ Offerings may be limited. Each User understands that we may require that User’s review and acceptance of our then-current Agreement before that User will be permitted to use any subsequent versions of the App. Each User acknowledges and agrees that Phillips™ has no obligation to make any subsequent versions of the App available to that User, or to provide bug fixes, error corrections, patches, new releases or any other component not specified within the Agreement.
(f) Third-Party Software. ANY THIRD-PARTY SOFTWARE, AS WELL AS ANY THIRD-PARTY PROVIDED PLUG-INS, THAT MAY BE PROVIDED WITH THE APP ARE MADE AVAILABLE FOR USE AT EACH USER’S SOLE OPTION AND RISK. IF A USER CHOOSES TO USE SUCH THIRD-PARTY SOFTWARE, THEN SUCH USE SHALL BE GOVERNED BY SUCH THIRD-PARTY’S LICENSING AGREEMENT(S), TERMS AND CONDITIONS AND PRIVACY PRACTICES. PHLLIPS™ IS NOT RESPONSIBLE FOR ANY THIRD-PARTY SOFTWARE AND SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY USER’S USE OF, OR INABILITY TO USE, THIRD-PARTY SOFTWARE.
(g) App License Grant/Termination. Subject to the restrictions set forth in the Agreement, we grant to you a personal, non-exclusive, limited, non-transferable, non-assignable, non-sublicensable, limited license to install and run the App and related Software, in object code format only, on Mobile Devices owned or controlled by you, solely for the purpose of accessing and using the Phillips™ Offerings in accordance with the Agreement, and solely for so long as your Account is in good standing. You acknowledge you are receiving licensed rights only. The licenses set forth in this Section 6 shall be in effect unless and until this license is terminated by Phillips™. Phillips™ may terminate the licenses set forth in this Section 6 and/or disable, remove or change the App and/or any portion thereof in its sole discretion at any time, with or without notice, by remote updates or otherwise. In addition, this license will terminate immediately with respect to a User if that User fails to comply with any term or condition of the Agreement. Each User agrees upon expiration or termination of this license to immediately un-install the App. You may not network the App and/or Software among multiple Mobile Devices. You may not directly or indirectly, or authorize any person or entity to: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the App, Software and/or its/their structural framework; (ii) create derivative works of the App and/or Software; (iii) use the App and/or Software in whole or in part for any purpose except as expressly provided herein; or (iv) disable or circumvent any access control or related device, process or procedure established with respect to the App and/or Software. You acknowledge that you have access to sufficient information such that you do not need to reverse engineer the App and/or Software in any way to permit other products or information to interoperate with the App and/or Software. You are responsible for all use of the App and/or Software that is under your possession or control.
(h Export Restrictions. Each User agrees the App may not be transferred or exported into any other country or used in any manner prohibited by U.S. or other applicable export laws and regulations.
7. Endless Aisles™
The Endless Aisles™ platform, and its various features, services and offerings are further described in, and subject to, the separate Endless Aisles™ Terms. Endless Aisles™ provides retail outlet Users with a Product-fulfilment solution whereby Customers of such retail outlets can order Products that are not in stock at the applicable retail outlets by and through the Endless Aisles™ platform. Depending on which version of the platform is requested, Phillips™ will handle some or all aspects of Product fulfilment – including packaging and delivery, as well as processing payments and returns – while maintaining the branding of the applicable retail outlet User in connection with each such Product shipment. Where the applicable retail outlet User has requested payment processing services in connection with the Endless Aisles™ platform, then following receipt of payment in connection with a Customer order, Phillips™ will deduct the applicable Endless Aisles™ service fee (as set forth in the Endless Aisles™ Terms) and remit the difference to the applicable User. Otherwise, Phillips™ or its marketing partners, will invoice the retail outlet User directly. Phillips™ does not guarantee any sales outcome, revenue or other financial or business-related benefit in connection with use of the Endless Aisles™ platform. Subject to the conditions set forth herein, you agree to be bound by the Billing Provisions of Phillips™ associated with the Endless Aisles™ platform in effect at any given time. Upon reasonable prior notice to you (with Site-updates and/or e-mail sufficing), Phillips™ reserves the right to change its Billing Provisions whenever necessary, in its sole discretion. Continued use of the Site and/or Endless Aisles™ platform after receipt of such notice shall constitute consent to any and all such changes; provided, however, that any amendment or modification to the Billing Provisions shall not apply to any service fees applied prior to the applicable amendment or modification. You understand and agree that Phillips™ is not responsible or liable in any manner whatsoever for your use of, or inability to use the Endless Aisles™ platform. You understand and agree that Phillips™ shall not be liable to you, any Customer or any third-party for any modification, suspension or discontinuation of the Endless Aisles™ platform. You understand and agree that refusal to use the Phillips™ Offerings is your sole right and remedy with respect to any dispute with Phillips™.
The Products, Product descriptions, statements regarding Product efficacy and photographic images of the Products are provided directly by the Product manufacturers, and not Phillips™, and are reprinted on the Site, in the App and on Endless Aisles™ platform Customer interface with the permission of the applicable Product manufacturers. As a result, Phillips™ has no control over: (a) the quality, safety or legality of those Products; and/or (b) the truth or accuracy of those Product descriptions and associated claims regarding efficacy of, or the health benefits, nutritional benefits or other outcomes associated with, such Products. Phillips™ does not warrant that the Product descriptions (or other Content contained on the Site) is/are accurate, complete, reliable, current or error free. We have made every effort to display as accurately as possible the Product packaging, as well as the colors of the Products that appear on the Site. However, as the actual colors you see will depend on your monitor/screen and other factors associated with your computer, mobile device or other device used to access the Site, as applicable, we cannot guarantee that the depiction of any color as viewed by you through your monitor/screen will be accurate. In addition, certain images of the Product packaging may be outdated and no longer in use by the applicable Product manufacturer,
In the event that a Product is listed at an incorrect price point due to a typographical error or an error in pricing information received from our suppliers, Phillips™ shall have the right to refuse or cancel any orders placed for that Product so listed at the incorrect price. In addition, Phillips™ shall have the right to limit the number of Products purchased through the Site, App and/or Endless Aisles™ platform Customer interface. Phillips™ shall have the right to refuse or cancel any order whether or not the order has been confirmed and whether or not the applicable Customer paid for such Products. If a Customer has already paid for Products and that order is cancelled, Phillips™ shall immediately issue a credit to that Customer’s payment method in the amount of the subject charge.
You understand and agree that Phillips™ is not responsible or liable in any manner whatsoever for your Customers’ use of, or inability to use and/or acquire any Products. You understand and agree that Phillips™ shall not be liable to you, any Customer or any third-party for any modification, suspension or discontinuation of any Product, service or promotion offered by Phillips™. You understand and agree that refusal to use the Phillips™ Offerings is your sole right and remedy with respect to any dispute with Phillips™.
The Site contains Content which includes, but is not limited to, videos, audio, testimonials, text, photographs, graphics, artwork, information pertaining to trade shows and industry events and/or other materials regarding the Phillips™ Offerings. The Content is offered for informational purposes only and is at all times subject to the disclaimers contained herein and on the Site.
10. Social Media Pages
The Site contains links to the various Phillips™ Social Media Pages. The Social Media Pages are hosted and made available on third-party websites (“Social Media Websites”) by third-party entities. Your use of Social Media Pages and Social Media Websites shall be governed by those Social Media Websites’ applicable agreements, terms and conditions. You understand and agree that Phillips™ shall not be liable to you or any third-party for any claim in connection with your use of, or inability to use, the Social Media Pages and/or Social Media Websites.
The Phillips™ Offerings, as well as the organization, graphics, design, compilation, magnetic translation, digital conversion, software, services and other matters related to same, and all Phillips™ logos, symbols, expansion names and symbols, trade dress or “look and feel,” and all derivative works or modifications of/to any of the foregoing, and all related and underlying intellectual property (including, without limitation, patents, trademarks, trade secrets and copyrights), are the sole and exclusive property of Phillips™. We reserve all rights not expressly granted herein. Except as expressly set forth herein, no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights and your use of the Phillips™ Offerings does not convey or imply the right to use the Phillips™ Offerings in combination with any other information or products. The posting of information or material by and through the Phillips™ Offerings does not constitute a waiver of any right in or to such information and/or materials. The “Phillips” name and logo are trademarks of Phillips Feed Service, Inc. The “Endless Aisles Special Ordering” and “Endless Aisles” names and logos, and all associated graphics, icons and service names, are trademarks of PHIDO, Inc. All Product-related trademarks, brand names, custom graphics, icons and service names are the intellectual property of their rightful owners including, without limitation, the applicable distributors and manufacturers. The use of any Phillips™ trademark without Phillips’™ express written consent is strictly prohibited. The use of any third-party trademark without that party’s express written consent is strictly prohibited.
Each User is granted a non-exclusive, non-transferable, revocable and limited license to access and use the Phillips™ Offerings. Phillips™ may terminate this license at any time for any reason. Unless otherwise expressly authorized by Phillips™ in writing in each instance, Users may only use the Phillips™ Offerings for their own personal, non-commercial use. No part of the Phillips™ Offerings may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. No User or other third-party may use any automated means or form of scraping or data extraction to access, query or otherwise collect material from the Phillips™ Offerings except as expressly permitted by Phillips™. No User or other third-party may use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Phillips™ Offerings, or any portion thereof. No User or other third-party may create any “derivative works” by altering any aspect of the Phillips™ Offerings. No User or other third-party may use the Phillips™ Offerings in conjunction with any other third-party content. No User or other third-party may exploit any aspect of the Phillips™ Offerings for any commercial purposes not expressly permitted by Phillips™. Each User further agrees to indemnify and hold Phillips™ harmless for that User’s failure to comply with this Section 12. Phillips™ reserves any rights not explicitly granted in the Agreement.
13. Representations and Warranties
User hereby represents and warrants to Phillips™ as follows: (a) this Agreement constitutes the legal, valid and binding obligation of User and the Entity that she/he represents, which is fully enforceable against User and that Entity in accordance with its terms; (b) User understands and agrees that User and the Entity that she/he represents has independently evaluated the desirability of utilizing the Phillips™ Offerings and that neither User nor the Entity that she/he represents has relied on any representation and/or warranty other than those set forth in the Agreement; (c) the execution, delivery and performance of the Agreement by User and the Entity that she/he represents will not conflict with or violate: (i) any order, judgment or decree applicable to User and/or the Entity that she/he represents; (ii) any provision of User’s Entity’s corporate by-laws, certificate of incorporation or other organizational documents, if applicable; or (iii) any agreement or other instrument applicable to User and/or the Entity that she/he represents; and (d) the performance under this Agreement, the use of the Phillips™ Offerings and any and all other material, content, products and/or services of User and/or the Entity that she/he represents, will not: (i) invade the right of privacy or publicity of any third person; (ii) involve any libelous, obscene, indecent or otherwise unlawful material; (iii) violate any Applicable Law; and/or (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity.
Each User and the Entity that she/he represents agrees to indemnify, defend and hold Phillips™, its employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys’ fees, court costs and/or settlement costs) arising from or related to: (a) any dispute between that User/Entity and any other User, Entity, Product manufacturer or third-party; (b) that User’s/Entity’s improper and/or unauthorized use of the Phillips™ Offerings; (c) that User’s/Entity’s breach of the Agreement in any manner whatsoever; and/or (d) that User’s/Entity’s violation of any rights of another individual and/or entity. The provisions of this Section 14 are for the benefit of Phillips™, its parent, subsidiaries and/or affiliates, and each of their respective members, officers, directors, employees, agents, shareholders, licensors, suppliers and/or attorneys. Each of these individuals and entities shall have the right to assert and enforce these provisions directly against you on its own behalf.
15. Legal Warning
Any attempt by any individual to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Phillips™ Offerings is a violation of criminal and civil law and Phillips™ will diligently pursue any and all remedies against any offending individual or entity to the fullest extent permissible by law and in equity.
16. DISCLAIMER OF WARRANTIES
THE PHILLIPS™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME ARE PROVIDED TO USERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, PHILLIPS™ MAKES NO WARRANTY THAT THE PHILLIPS™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME: (A) WILL MEET ANY USER’S/ENTITY’S REQUIREMENTS; (B) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED; (C) WILL BE FREE OF HARMFUL COMPONENTS; (D) WILL RESULT IN ANY SPECIFIC SALES, REVENUE OR BUSINESS RELATED BENEFIT OR OTHER FINANCIAL OUTCOME; (E) WILL RESULT IN ANY SPECIFIC PET-RELATED DIETARY BENEFIT, HEALTH-RELATED OUTCOME OR OTHER OUTCOME; AND/OR (F) WILL BE ACCURATE OR RELIABLE. THE PHILLIPS™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. PHILLIPS™ WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE PHILLIPS™ OFFERINGS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY ANY USER FROM PHILLIPS™ OR OTHERWISE THROUGH OR FROM THE PHILLIPS™ OFFERINGS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
17. Limitation of Liability
EACH USER EXPRESSLY UNDERSTANDS AND AGREES THAT PHILLIPS™ SHALL NOT BE LIABLE TO THAT USER, THE ENTITY THAT SUCH USER REPRESENTS OR ANY THIRD-PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PHILLIPS™ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FOR: (A) THE USE OR INABILITY TO USE THE PHILLIPS™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, CONTENT AND/OR ANY OTHER PRODUCTS PURCHASED OR OBTAINED FROM OR THROUGH THE PHILLIPS™ OFFERINGS; (C) ANY DISPUTE BETWEEN ANY USERS, ENTITIES AND/OR THIRD PARTIES; (D) THE UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER’S AND/OR ENTITY’S REGISTRATION DATA; (E) THE FAILURE TO REALIZE ANY SPECIFIC SALES, REVENUE OR BUSINESS RELATED BENEFIT OR OTHER FINANCIAL OUTCOME; (F) THE FAILURE OF ANY PRODUCT TO PRODUCE ANY SPECIFIC PET-RELATED DIETARY BENEFIT, HEALTH-RELATED OUTCOME OR OTHER OUTCOME; AND (G) ANY OTHER MATTER RELATING TO THE PHILLIPS™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND ANY AND ALL OTHER TORTS. EACH USER, ON HER/HIS BEHALF AND ON BEHALF OF THE ENTITY THAT SHE/HE REPRESENTS, HEREBY RELEASES PHILLIPS™ FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATIONS STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE MAXIMUM LIABILITY OF PHILLIPS™ TO ANY USER AND/OR ENTITY UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE PHILLIPS™ OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME, MAY BE BROUGHT BY ANY USER, ENTITY OR PHILLIPS™ MORE THAN ONE (1) YEAR FOLLOWING THE EVENT WHICH GAVE RISE TO THE CAUSE OF ACTION. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EACH USER, ENTITY AND PHILLIPS™. ACCESS TO THE PHILLIPS™ OFFERINGS WOULD NOT BE PROVIDED TO ANY USERS AND/OR ENTITIES WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF PHILLIPS™ SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Third-Party Websites
The Phillips™ Offerings contain links to other websites on the Internet that are owned and operated by third parties including, without limitation, the Social Media Websites. Phillips™ does not control the information, products or services made available on or through these third-party websites. The inclusion of any link does not imply endorsement by Phillips™ of the applicable website or any association with the website’s operators. Because Phillips™ has no control over such websites and/or resources, each User/Entity agrees that Phillips™ is not responsible or liable for the availability or the operation of such external websites, for any material located on or available from or through any such websites or for the protection of any User’s/Entity’s data privacy by third parties. Each User/Entity further agrees that Phillips™ shall not be responsible or liable, directly or indirectly, for any loss or damage caused by the use of or reliance on any such material available on or through any such website.
19. Editing, Deleting and Modification
Phillips™ reserves the right, in its sole discretion, to edit and/or delete any documents, information or Content appearing on the Site.
20. Use of User Information
21. Dispute Resolution Provisions
The Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles). In the event that any suit, action or other legal proceeding shall be instituted against any User or Phillips™ (each a “Party” and collectively, the “Parties”) in connection with the Agreement and/or Phillips™ Offerings, each Party hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State Court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction. If any litigation, action or other proceeding is threatened and/or commenced between the Parties or their personal representatives arising out of and/or concerning and/or related to any provision of the Agreement and/or the Phillips™ Offerings, or the assertion and/or protection of any issue, interest, right and/or duty of any person in relation thereto, whether or not litigation is actually initiated, the prevailing Party shall be entitled to recover from the non-prevailing or defaulting Party, in addition to other relief as may be granted, its reasonable attorneys’ fees in either prosecuting and/or defending such threat, actual litigation, mediation and/or settlement efforts, including, but not limited to, pre-litigation, litigation, trial, post judgment collection, appellate and bankruptcy-related legal fees and costs.
Should any part of the Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Phillips™ Offerings is in conflict or inconsistent with the Agreement, the Agreement shall take precedence. Notwithstanding the foregoing, to the extent that there is any inconsistency between these Terms and the Endless Aisles™ Terms, insofar as the Endless Aisles™ platform is concerned, the applicable Endless Aisles™ Terms shall govern. Phillips’s™ failure to enforce any provision of the Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. The parties do not intend that any agency or partnership relationship be created through operation of the Agreement. Phillips™ may, with or without notice to you and in its sole discretion, assign the Agreement and/or any of its rights or delegate its duties under the Agreement to any third-party for any purpose. The Agreement, may not however, be assigned by you, and you may not delegate your duties under it. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
23. Electronic Signatures
You acknowledge and agree that by clicking on the submit button, or taking such other action as may be designated by Phillips™ as a means of accepting the Agreement, you are submitting a legally binding electronic signature and entering into a legally binding contract. You acknowledge that your electronic submission constitutes your agreement and intent to be bound by the Agreement. Pursuant to any and all 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 SITE AND/OR OTHER Phillips™ OFFERINGS. Further, you hereby waive any right or requirement under any statutes, regulations, rules, ordinances or other law in any jurisdiction which require(s): (a) an original signature; (b) delivery or retention of non-electronic records; and/or (c) payments, or the granting of credits, by other than electronic means.
24. Technical Difficulties
We are not responsible for delays, disruptions, malfunctions or other technical interruptions that affect the Phillips™ Offerings including, without limitation, problems with Mobile Devices, the App, the Site, computer systems, telephone carriers, or Internet service providers or the quality of coverage, strength of signal, delays or outages in service.
25. Notice to U.S. Government Users
The App is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government Users acquire the App with only those rights set forth therein.
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