Terms and Conditions

Last Updated: March 1, 2023

Introduction

Welcome to Phixton® Flashlight! These Terms and Conditions (“Terms“) are a legal agreement between you and Phixton® Flashlight (“Phixton“, “we” “our” or “us“) governing your access to and use of phixton.shop (the “Website“) and any product, service, content, feature, technology or functionality we offer on the Website or in connection with Phixton (collectively the “Services“).

Please read these Terms carefully before using the Website or Services. By accessing or using the Website or Services, you signify your agreement to these Terms. If you do not agree to be bound by these Terms, do not access or use the Website or Services.

We may modify these Terms at any time, and such modification will be effective immediately upon posting the modified Terms. Your continued use of the Website or Services after a change represents your agreement to the modified Terms. You should therefore review these Terms before using the Website or Services. The modified Terms will apply prospectively to your use of the Website and Services after the effective date. These Terms were last updated on the date indicated above.

Access and Use of the Website and Services

Minimum Age. You must be at least 18 years old or the applicable age of majority in your jurisdiction to open an account or use the Website or Services. By using the Website or Services, you represent and warrant that (a) you are at least 18 years old or the applicable age of majority in your jurisdiction and (b) your use of the Website and Services does not violate any applicable law or regulation.

Account Registration. To access certain features, you will have to create an account. When you register for an account, you agree to (a) provide accurate, current and complete information about yourself; (b) maintain and promptly update your information to keep it accurate, current and complete; (c) maintain the security of your login credentials and restrict access to your account; (d) take responsibility for all activities that occur under your account; and (e) immediately notify us of any unauthorized account use or other security breach. We reserve the right to suspend or terminate your account if you provide inaccurate, fraudulent or misleading information, or fail to comply with these Terms.

User Content. If you submit, upload, publish, email, transmit, store or otherwise make available any reviews, forum posts, information, text, graphics, photographs, videos, or other content, materials or information to Phixton through the Services (“User Content”), you agree to grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sublicenseable and transferable license to access, archive, use, distribute, perform, display, reproduce, transmit, modify, adapt, edit, publish, translate, create derivative works from, and/or sell and/or license such User Content, for any purpose in any formats and on any platforms, either now known or hereafter devised. You represent and warrant that you have all necessary rights and licenses to grant us this license for any User Content you submit, and that the User Content will not infringe or violate any third party’s copyrights, trademarks, rights or privacy or publicity, or contain libelous, tortious or otherwise unlawful material.

Restrictions. You are solely responsible for your access to and use of the Website and Services and for your User Content. You will not, and will not permit or encourage others to:

Use the Website or Services for any fraudulent, unlawful, harmful, infringing, obscene, or criminal purpose.
Impersonate any person or entity or provide false or misleading information.
Circumvent or manipulate our fee structure, billing process or metrics.
Attempt to gain unauthorized access to the Website or Services, accounts not belonging to you, our computers or networks, or the computers or networks of third parties who host our Website and Services.
Probe, scan or test the vulnerability of the Website, Services or any network connected to the Website or Services.
Breach or attempt to breach any security or authentication measures implemented in or by the Website or Services.
Access, monitor or copy any content or information from the Website or Services using any robot, spider, crawler, scraper or other automated means or interface.
Upload, post, email or otherwise transmit any material that contains viruses, Trojan horses, worms, spyware, adware or other malicious or harmful code or spam.
Reverse engineer, decompile, disassemble, copy or attempt to derive the source code for, decrypt, modify, adapt, sublicense, translate, or create derivative works from the Website, Services, or any of their elements.
Bypass or circumvent any access controls, usage restrictions or other security features of the Website or Services.
Perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing or tampering with non-public areas of the Website or Services, or falsifying your user agent identification.
Frame, embed the Website or Services, or incorporate the Website or Services into any other website or platform without our prior written consent.
Post, upload or distribute marketing or advertising content, software or programs that are unlawful or harmful.
Collect, harvest, gather or assemble information about others without their consent.
Display or link to child pornography, malware, spam, pyramid schemes, or unlawful content or activity.
Violate the rights of Phixton or any third party, including intellectual property rights and rights of privacy or publicity.

Availability of Website and Services. We may, without notice to you, at any time suspend, terminate, or restrict your access to, or use of the Website or Services. We may also impose limits on certain features or services or restrict your access to parts of, or the entire, Website or Services without notice or liability to you. The Website and Services rely on various third party providers such as webhosting, cloud computing, and payment processing services. We cannot guarantee continuous or uninterrupted access to the Website or Services, and operation of the Website or Services may be affected by numerous factors outside of our control.

Intellectual Property Ownership

Phixton retains all proprietary rights in and to the Website, Services, and all content, including without limitation trademarks, copyrights, patents, trade secrets, trade dress, design rights, database rights, source code, object code, and proprietary or confidential information. Nothing in these Terms grants you any right, title or interest in the Website, Services or any of Phixton’s intellectual property rights. Do not remove, obscure or alter any copyright, trademark or other intellectual property notices displayed on the Website or Services.

Feedback

If you provide feedback, suggestions or recommendations to Phixton regarding the Website or Services (“Feedback”), you assign all ownership rights in that Feedback to Phixton and agree that Phixton may use the Feedback without restriction or compensation to you.

Indemnification

You agree to indemnify, defend and hold harmless Phixton from any claims, damages, liabilities, losses, costs and expenses (including attorneys’ fees) arising out of or relating to your use of the Website or Services, any User Content, your violation of these Terms or applicable law, or your violation of any rights of any third party. Phixton reserves the right, at your expense, to assume the exclusive defense and control of any matter which you are required to indemnify, but doing so will not release your indemnity obligations.

Disclaimers and Limitations

Disclaimers. THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED. PHIXTON SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT. NO REPRESENTATIONS, WARRANTIES OR CONDITIONS WILL ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.

Limitations. IN NO EVENT WILL PHIXTON BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF PHIXTON WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT WILL PHIXTON’S LIABILITY FOR ANY CLAIMS ARISING IN CONNECTION WITH THESE TERMS OR YOUR ACCESS TO OR USE OF THE WEBSITE OR SERVICES EXCEED THE GREATER OF: (A) $100; OR (B) ANY FEES PAID BY YOU TO PHIXTON FOR ACCESS TO OR USE OF THE WEBSITE OR SERVICES DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM.

Some jurisdictions do not allow limitations on certain warranties or conditions, or limitations on liability, so some or all of these limitations may not apply to you.

Termination

Phixton may terminate your access to and use of the Website and Services at any time for any reason. If we terminate your access for a violation of these Terms, you may not access or use the Website or Services thereafter. Upon any termination, you will still be bound these Terms.

All provisions that reasonably should survive termination, shall survive termination, including without limitation ownership provisions, warranty disclaimers and limitations of liability.

Changes to the Terms

We may amend these Terms from time to time by posting an updated version of the Terms on the Website. The modified Terms will become effective upon posting. Continued use of the Website or Services after a change in the Terms constitutes your acceptance of the change. The updated Terms will apply prospectively to your use of the Website and Services after the change is posted. You should check the Terms each time before you access or use the Website or Services.

Governing Law and Arbitration

Governing Law. These Terms and your access to and use of the Website and Services will be governed by the laws of the state of Tennessee without regard to conflict of law principles.

Mandatory Arbitration. YOU AND PHIXTON AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE WEBSITE OR SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. This arbitration provision applies to any claims asserted by you against Phixton, its affiliates and service providers, including any claims related to the Website or Services.

The arbitration will be administered by the American Arbitration Association (AAA) in accordance with its Consumer Arbitration Rules in effect at the time the claim is made. The arbitration will be presided over by a single arbitrator selected in accordance with the AAA rules. The location of the arbitration and identity of the arbitrator will be designated by AAA. The arbitrator will decide all issues relating to arbitrability, and may award any relief that a court could order under applicable law. Any arbitration will occur on an individual basis — class arbitrations and class actions are not permitted under this Agreement.

The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. YOU AND PHIXTON AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator may award the same damages and relief that would be available in court. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Location. To the extent that any aspect of this arbitration provision is deemed unenforceable or void, including the class action waiver, such decision shall not invalidate the entire arbitration provision. The remaining portions of the arbitration provision shall be enforced to the extent permitted by law. The arbitration will take place in Nashville, Tennessee or, for customers located outside of the United States, in the nearest reasonably available location.

Fees. If you initiate arbitration, you will be responsible for paying a $200 filing fee. Phixton will pay all other AAA arbitration costs up to $2,500, including arbitrator fees. For claims that total less than $10,000, Phixton will pay all arbitration costs, including your filing fee. Phixton also reserves the right to pay any arbitration costs in excess of the amounts specified here for customers pursuing claims against Phixton. Each party will bear their own attorneys’ fees and other expenses for arbitration, except that the arbitrator may award the prevailing party their attorney fees and costs.

Opt-Out Procedure. YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS AFTER THE DATE YOU FIRST CONSENT TO THESE TERMS BY EMAILING US AT [email protected], WITH THE SUBJECT: “ARBITRATION OPT-OUT.” The opt-out email must clearly state your name, mailing address, service username (if any) and a statement that you do not wish to resolve disputes through arbitration. Any opt-out received after 30 days of your first consent to these Terms will not be valid and you must pursue your dispute in arbitration or small claims court.

Severability. If any clause within this arbitration provision is determined invalid or unenforceable, that clause will be severed from the remainder of this arbitration provision and the remainder of this arbitration provision will be enforced.

Contact Us

If you have any questions about these Terms, please contact us at:

Email: [email protected]

Phone: 1-800-555-1234

Mail: Phixton Flashlights, 123 Main St, Nashville, TN 37217 United States