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Terms & Conditions

Terms and Conditions of Website Use

LAST UPDATED:   August 23, 2018

Table of Contents:

  1. Acceptance of Our Terms
  2. Your Account
  3. Product Information
  4. Accuracy of Information
  5. Intellectual Property
  6. Limited License
  7. Third Party Links
  8. Submissions
  9. Privacy
  10. Consent to Receive Notices Electronically
  11. Customer Responsibilities
  12. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY
  13. Indemnification
  14. Governing Law and Jurisdiction
  15. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER
  16. Limited Time to File Claims
  17. Exclusions and Limitations; Consumer Protection Notice

1. Acceptance of Our Terms

By visiting Fruit of the Earth’s website – FOTE.com – (the “Website” or “We”), and by viewing, accessing or otherwise using any of the services or information created, collected, compiled or submitted to this Website, you agree to be bound by the following Terms and Conditions of Website Use (“Terms”). If you do not want to be bound by our Terms, you should not visit, view or otherwise use the services of the Website. You understand, agree and acknowledge that you have read, understand and agree to be bound by these Terms. The Terms constitute a legally binding agreement between you and Fruit of the Earth and your use of this Website shall indicate your conclusive acceptance of this agreement.

Fruit of the Earth may modify these Terms or other policies set forth on the Website from time to time. When we modify these Terms, we will update the “Last Updated” line above. It is your responsibility to regularly review these Terms. Your use of the Website following the posting of updated Terms constitutes your acceptance of such updated Terms.

Fruit of the Earth provides the content, products and services available on this Website subject to the following Terms, our Privacy Policy and other terms and policies which you may find throughout our Website with regard to functionality, features, promotions and customer services.

2. Your Account

You can register for an account on our Website if you are at least eighteen (18) years of age. You are responsible for providing accurate information and for keeping it current. We reserve the right to refuse service and/or terminate your account without notice if these Terms are found violated.

3. Product Information

All material and information presented by Fruit of the Earth is intended for personal education or informational purposes only. The statements made about our products may not have not been evaluated by the U.S. Food and Drug Administration. Any results achieved may differ from individual to individual. The products and statements are not intended to diagnose, treat, prevent or cure any condition. All products should be used with their recommended instructions, precautions and guidelines. Please consult with your own physician regarding the use of our products before using or relying on them. You should always check the product ingredients prior to use to avoid potential allergic reactions.

4. Accuracy of Information

We make every attempt to be accurate on our product descriptions on the Website, however to the extent permitted by applicable law, we do not warrant our product descriptions to be entirely accurate or current at all times.

SEE SECTION 17 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 4.

5. Intellectual Property

All Content on this Website and marketing and communication materials derived from this Website, including but not limited to trademarks, logos, graphics, images, text, icons, data and software (collectively, “Content”) is the sole property of Fruit of the Earth and is protected by all relevant U.S. and International laws. Neither the Content nor any part of the Website may be reproduced, modified, altered or used for any other purposes beyond personal or non-commercial use, without the express, prior written consent of Fruit of the Earth.

6. Limited License

You are granted a limited, revocable license to access our Website for your personal use only; this does not include the right to: Republish, transmit, sell, license or download the Website or its Content (except caching or as necessary to view the Website); Change, reverse engineer or create derivative works based upon the Website or its Content; Use software robots, spiders, crawlers or other extraction tools, or use other means that may compromise our infrastructure.

7. Third Party Links

We take no responsibility for third party websites that link to or from our Website. Another website that links to our Website: Shall not imply that we are endorsing the website, its services or products; Shall not misrepresent its relationship with us, nor misrepresent our company or products in a false or offensive manner; Shall not contain content that is obscene, offensive or illegal.

8. Submissions

Any submissions, feedback or suggestions you give to us are to be used at the company’s sole discretion and will be considered non-proprietary and non-confidential. By transmitting a submission to us, we reserve the right to use, reproduce, modify, publish, license, sell, distribute or use in any way that we see fit without payment to you.

9. Privacy

We will never sell your information to any third party. Please read our Privacy Policy for complete details.

10. Consent to Receive Notices Electronically

You consent to receive any agreement, notice, disclosure or other communication (collectively, “Notices”) from us electronically without limitation, by email or by posting notices on our Website. You agree that all Notices we provide to you will satisfy any legal requirement that such communications be in writing.

11. Customer Responsibilities

By accessing this Website, you agree to comply with these Terms while acting in accordance with the law. You are prohibited from making any duplications or alterations to the Website or its Content, or to in any way impair or interfere with the integrity and operation of the Website or its Content.

12. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY

THIS WEBSITE IS PRESENTED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESSLY OR IMPLIED, IN CONNECTION WITH THESE TERMS OR THE WEBSITE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT SUCH REPRESENTATIONS AND WARRANTIES ARE NOT LEGALLY EXCLUDABLE. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, UNDER ANY CIRCUMSTANCES, FOR ANY: INTERRUPTION OF BUSINESS; ACCESS DELAYS OR INTERRUPTIONS TO THE WEBSITE;  INACCURACIES OR OMISSIONS IN CONTENT; SYSTEM FAILURES, MALFUNCTIONS OR VIRUSES WHICH CAN OCCUR IN CONNECTION WITH YOUR USE OF THE WEBSITE, INCLUDING DURING HYPERLINK TO OR FROM THIRD PARTY WEBSITES; WE WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES OF ANY KIND RELATED TO THE WEBSITE OR YOUR USE THEREOF. NOTHING IN THIS SECTION SHALL LIMIT OR EXCLUDE ANY LIABILITY FOR PERSONAL INJURY RESULTING FROM NEGLIGENCE.

SEE SECTION 17 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 12.

13. Indemnification

You agree to indemnify and hold us harmless for any kind of loss, damage and costs, including reasonable attorneys’ fees, resulting from any claim, action or demand resulting from your use of the Website or breach of its Terms.

SEE SECTION 17 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 13.

14. Governing Law and Jurisdiction

These Terms shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any principles of conflicts of law. Subject to the Arbitration provision set forth in Section 15, you hereby consent and submit to the personal jurisdiction in the state and federal courts located in Dallas County or Tarrant County, Texas. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. Any waiver of any provision of these Terms must be in writing signed by an authorized representative of Fruit of the Earth to be valid. A waiver of any provision hereunder shall not operate as a waiver of any other provision, or a continuing waiver of the same provision in the future.

IF YOU ARE A CONSUMER, HOWEVER, THIS PROVISION SHALL NOT BE CONSTRUED TO LIMIT YOUR RIGHTS UNDER CONSUMER PROTECTION LAWS OF YOUR STATE OF RESIDENCE AS SET FORTH IN SECTION 17.

15. DISPUTE RESOLUTION; INFORMAL RESOLUTION AND FORMAL RESOLUTION BY ARBITRATION/CLASS ACTION WAIVER

In order to expedite and control the cost of disputes, you and Fruit of the Earth agree that any legal or equitable claim relating to use of this Site or the purchase of any Fruit of the Earth  product from this Site (referred to as a “Claim”) will be resolved as follows:

  1. A. Informal Resolution:

You and Fruit of the Earth will first attempt to resolve any Claim informally. In the event that any dispute between Fruit of the Earth and you arises out of or relates to these Terms, the applicability of these Terms to the use of any Fruit of the Earth Site, or purchase of any Fruit of the Earth products from this Site, or to breach or enforcement, interpretation or validity of these Terms, you and we agree to try to promptly resolve any such dispute informally. Please send a written notice describing the dispute to contactus@fote.com

  1. Formal Resolution by Arbitration/Class Action Waiver:

READ THE FOLLOWING ARBITRATION PROVISION CAREFULLY, IT LIMITS YOUR RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION.  You agree that any dispute, controversy or Claim arising out of or relating to these Terms, the applicability of these Terms as to the use of any Fruit of the Earth Site, or the purchase of any Fruit of the Earth products from this Site, or to breach or enforcement, interpretation or validity of these Terms, or the determination of the scope or applicability of Arbitration shall be governed solely by the Federal Arbitration Act.

If you and Fruit of the Earth cannot resolve a Claim informally, any Claim asserted by either party will be resolved only by binding Arbitration. By agreeing to Arbitration, both you and Fruit of the Earth understand and agree that all disputes shall be decided by an arbitrator and that you are waiving your rights to maintain other available resolution processes, such as a court action or administrative proceeding, to settle disputes.  Instead of suing in court, both you and Fruit of the Earth each agree to settle disputes (except certain small claims) only by Arbitration. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. The rules in Arbitration are different.  There is no judge or jury, and review is limited, but an arbitrator can award the same damages and relief, and must honor the same limitations stated in these Terms as a court would.

The Arbitration will be conducted under the JAMS Streamlined Arbitration Rules & Procedures (referred to as the “JAMS Rules”) and under the rules set forth in these Terms. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in these Terms will govern. You may, in Arbitration, seek any and all remedies otherwise available to you pursuant to the law of the governing state. If you decide to initiate Arbitration, Fruit of the Earth agrees to pay the Arbitration initiation fee and any additional required deposit required by JAMS to initiate your Arbitration. You and Fruit of the Earth agree to pay the costs of the Arbitration proceeding provided however that if you are a consumer you shall not be required to pay more than $250.00 of the fees or such amount as the JAMS Rules may later prescribe. All other fees, such as attorneys’ fees and expenses of travel to the Arbitration, will be paid in accordance with JAMS Rules. To initiate Arbitration, you or Fruit of the Earth must do the following things:

(1)   Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a Demand for Arbitration at www.jamsadr.com.

(2) Send three copies of the Demand for Arbitration, plus the appropriate filing fee to:  JAMS, 8401 N. Central Expressway, Suite 610, Dallas, Texas 75225 or to your local JAMS location address.

(3) Send one copy of the Demand for Arbitration to the other party.

Special Rules in the Arbitration Proceeding. (i) The arbitrator has no authority to make errors of law and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator’s decision is final and binding on all parties and may be enforced in any Federal or State court that has jurisdiction. (ii) Neither you nor Fruit of the Earth shall be entitled to join or consolidate claims in Arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity.  THIS MEANS THAT YOU WAIVE YOUR RIGHT TO INITIATE OR PARTICIPATE IN ANY CLASS OR CONSOLIDATED ACTION WHATSOEVER.  Accordingly, you and Fruit of the Earth agree that the JAMS Class Action Procedures do not apply to our Arbitration. A court may sever any portion of this dispute resolution provision if it finds such unenforceable. Notwithstanding the obligation to arbitrate all Claims under these Terms, you may assert an individual Claim in small claims court in lieu of Arbitration.

16. Limited Time to File Claims

You agree that you will assert any Claim arising out of your use of any Fruit of the Earth Site or the purchase of any Fruit of the Earth product from this Site within one (1) year after the Claim arises, or such Claim will be barred.

SEE SECTION 17 BELOW FOR IMPORTANT LIMITATIONS ON THE TERMS OF THIS SECTION 16.

17. Exclusions and Limitations; Consumer Protection Notice

If you are a consumer, the provisions in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your State of residence.  If you are a New Jersey consumer, the terms of Sections 4, 12, 13, 14 and 16 do not limit or waive your rights as a consumer under New Jersey law and the provisions in these Terms are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey.  In any event, Fruit of the Earth reserves all rights, defenses and permissible limitations under the law of your State of residence.  Notwithstanding the foregoing, nothing in this Section shall modify Subsection 15(B) (“Formal Resolution by Arbitration/Class Action Waiver”).