Welcome to the Bivo website, operated by Bivo, LLC. (“Bivo”) and located at drinkbivo.com (the “Site”). Bivo values your business and engagement with our online resources. We can be reached via e-mail at thirsty@drinkbivo.com. The following terms and conditions (“Terms”) and Privacy Policy govern your use of the Site to the exclusion of all other oral or written representations of any kind.
By accessing, viewing, or using the content, products, or services available on or through the Site, you certify that you have read, understand, and agree to be legally bound by these Terms, as well as Bivo’s Privacy Policy, which is incorporated herein by this reference. You further certify that you are 13 years of age or older and that you are legally competent and have authority to enter into this Agreement and perform the obligations set forth under this Agreement. You understand and agree that your use of the Site or any content, products or services made available on or through the Site (collectively, the “Services”) shall be conclusive evidence of your agreement to these Terms. If you are under thirteen years old, are not competent to enter this agreement, or if you disagree with, do not understand, or object to any of these Terms, you must immediately discontinue your use of this Site.
1. Account Registration and Order Placement.
In order to access certain content, material, products or services on the Site, you may be required to register and create an account. As part of the registration process, you may be asked to click to agree to these Terms, and may then be asked to select or submit a username and password. You may also be required to provide Bivo with certain information about yourself including some types of personally identifiable information, including your legal name, phone number, address, email address, gender, and age. You are solely responsible for ensuring that your password and account login are kept secret, safe, and secure. Bivo will not be liable for any misuse of your account if a third party has access to and uses your password and account login.
When placing an order through the Site, you will again be required to provide personal information, such as shipping address, billing address, and payment details. Additional information may be collected by Bivo or its third-party providers at this time for security and anti-fraud purposes. You represent and warrant that the personal information you provide to us via the Site is true, valid, complete and up-to-date, and you confirm that you are the person referred to in the shipping and billing information provided. Should any of the information you provide us, you should promptly login to your account and update such information directly on the Site.
Any personal information that you provide to us via the Site is subject to our Privacy Policy.
2. Purchases.
By purchasing products or services made available through the Site, you represent that you have reached the age of majority (which in most states is 18 years old) and have the legal capacity to enter into a contract. If you are under the age of majority or cannot lawfully enter into a contract, you may not register an account or make a purchase through Site. Bivo may use a third-party payment processor to process credit card transactions made through the Site. You are responsible for paying any governmental taxes imposed in connection with your use of the Site or the purchase or any products or services made available through the Site. To the extent that Bivo is obligated by law to collect such taxes, the applicable tax will be added to your billing account. All sales are subject to our shipping and return policies, which will be made available to you on the Site. Bivo will refund purchases only if product is returned within 30 days in new condition. Bivo will replace product that is factory defective at any time.
3. Restrictions on Use.
You agree to use the Site and the Services only for purposes that are permitted by these Terms and in compliance with all applicable laws and regulations.
You agree not to do or attempt to do any of the any of the following:
(a) Access any of the Services by any means other than through the interface that is provided by Bivo;
(b) Gain unauthorized access to Bivo’s computer system or engage in any activity that interferes with the performance of, or impairs the functionality or security of the Site, the Services, Bivo’s networks and computer systems;
(c) Access the Site or the Services through any automated means or with any automated features or devices;
(d) Access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes;
(e) Reproduce, duplicate, copy, sell, trade, or resell any aspect or design feature of the Site for any purpose; and
(f) Reproduce, duplicate, copy, sell, trade or resell any products or services bearing any trademark, trade name, or logo owned by Bivo in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos, or that may dilute, diminish, or otherwise devalue Bivo’s products, branding, or trade name.
(g) Alter or modify any content or information on the Site.
Violation of this section will be pursued the appropriate legal action to the full extent of the law.
4. Content.
You agree that Bivo owns or licenses all information, materials, web infrastructure, organization, and all other content displayed on the Site (collectively, the “Content”). All Content is protected pursuant to all applicable laws governing ownership and use of intellectual property. Use of Bivo’s Content is prohibited and may violate federal and state trademark or copyright law. You agree that you have no rights of any kind in or to the Content.
Certain features of the Site may allow you to contribute feedback and other information to the Site for access, use, viewing, and commentary by other users of the Site (collectively, “Comments”). By posting Comments, you represent and warrant that Bivo’s use of the Comments, will not: (a) infringe any intellectual property, privacy, or other rights of any person or entity; (b) violate any law or regulation of any applicable jurisdiction; (c) violate any private or public agreement; or (d) constitute a disclosure of confidential information owned by or licensed to any third-party. Upon submission of Comments to Bivo, you grant us a worldwide, perpetual, irrevocable, transferable, license to use, distribute, modify, create derivative works based upon, and sublicense the Comments, all without compensation to you. Bivo has no obligation to: (a) preserve Comments; (b) maintain Comments in confidence; (c) compensate you for your Comments; or (d) respond to Comments.
5. Errors and Omissions.
The Site may from time to time contain inaccuracies or omissions that relate to product descriptions, pricing, promotions, offers, and availability. Bivo reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate at any time (including after order placement) without prior notice.
6. Warranties Disclaimed; Use of Site at Your Own Risk.
Bivo may limit the items offered on the Site at any time, without prior notice. Bivo may alter the terms or duration of any special offer or sale promotion. Bivo is not liable in case of product unavailability. Bivo cannot guarantee and does not warrant that the color of any product will accurately match that your computer monitor's display.
Bivo disclaims all warranties, express or implied, regarding the Site’s content, functionality, or fitness for your use. Without limitation, Bivo does not warrant that: (a) the Site, Services, Content, information or links provided on the Site will meet your requirements; (b) your use of the Site will be uninterrupted, timely, secure or free from error; (c) defects in the operation or functionality of any software provided to you will be corrected. No advice or information obtained by you from Bivo or through the Site shall create any warranty.
You understand that the processing and transmission of any Content and Comments may be transferred unencrypted. Bivo does not guarantee or warrant the security or confidentiality of any information sent to or from the Site. Bivo shall not be liable for: (a) any error, omission, deletion, defect, delay, theft, destruction, unauthorized access to, or alteration of, any communication made through the Site; and (b) technical malfunction of any online service provider, computer equipment, software, email, or internet traffic, that may result in injury or damage to any person’s computer related to or resulting from your use of the Site.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR OWN RISK. No conditions, warranties or other terms (express or implied) apply to your use of the Site, Content or Services except as expressly set out in these Terms.
7. Limitation of Liability.
BIVO’S LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF OR PURCHASE THROUGH THE SITE SHALL NOT EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. IF YOUR CLAIM DOES NOT INVOLVE THE PURCHASE OF ANY PRODUCT OR SERVICE, BIVO’S TOTAL LIABILITY SHALL NOT EXCEED $250. IN NO EVENT SHALL BIVO BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, NONECONOMIC, EXEMPLARY OR PUNITIVE DAMAGES. THIS LIMITATION OF LIABILITY APPLIES TO ALL CLAIMS OF ANY TYPE, REGARDLESS OF THE LEGAL THEORY ASSERTED. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON THAT PART SHALL BE SEVERED, THE REMAINDER OF THIS LIMITATION OF LIABILITY SHALL REMAIN IN FORCE. IF ANY PART OF THIS LIMITATION OF LIABILITY IS SEVERED DUE TO INVALIDITY OR UNENFORCEABILITY, A SUBSTITUTE PROVISION SHALL BE ENFORCED IN PLACE OF THE SEVERED PART THAT COMES CLOSEST TO EFFECTUATING THE PARTIES’ INTENT, WHICH IS TO LIMIT BIVO’S LIABILITY AS STATED HEREIN OR OTHERWISE TO THE MAXIMUM EXTENT ALLOWED BY LAW.
IF YOU ARE DISSATISFIED WITH THE SITE, THE SERVICES, OR THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND SERVICES.
8. Indemnity.
You agree to appear defend, indemnify and hold harmless Bivo, its officers, directors, members, employees, agents, affiliates, licensors and suppliers, successors, and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) by any third-party arising from or related to: (a) your use of or access to the Site; (b) your violation of these Terms; (c) your violation of any third-party’s rights, including without limitation intellectual property or privacy rights; or (d) the use by any other person who accesses this Site using your Internet account, electronic device, or login. Your obligations pursuant to this section will survive these Terms and your use of the Site. Bivo may, in its sole discretion, assume the exclusive defense and control of any matter subject to the requirements of this section, and you shall cooperate fully with Bivo and pay all reasonable costs and attorneys’ fees incurred in connection with such defense. You may not settle any claim contemplated in this Section without Bivo’s prior written consent, which may be withheld in Bivo’s sole discretion.
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9. Third-Party Content.
The Site may contain links or references to other websites outside of Bivo’s control. These websites may send cookies to you and may collect personally identifiable information about you and make use of that data in ways that this Site would not. Bivo has no control over these websites, and these Terms do not apply to them. Bivo is not responsible for those sites, or for any damage or losses that may result from the use of their content, goods, or services. Bivo encourages you to read the privacy policies and terms of use of the websites you enter.
10. Infringement Complaint Procedures.
If you believe that any content or postings on this Site violates your intellectual property or other rights, you must notify Bivo by email at thirsty@drinkbivo.com with a message that includes: (a) your name and, if applicable, the name of your company; (b) your contact information, including your email address; (c) the nature and substance of your complaint; and (d) the following statement: “The statements made in this message are true, complete and accurate, and may be used in evidence in court.” Bivo will make reasonable efforts to promptly evaluate complaints and make changes to the Site as Bivo deems appropriate in its discretion. The detail and completeness of your notice will assist us in that process. Failure provide the notice required in this section may result in a waiver of your claim.
11. Dispute Resolution.
Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration held in Portland, Oregon pursuant to the rules of the Arbitration Service of Portland (“ASP”). Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. The arbitrator may award the same relief on an individual basis that a court can award to an individual, and an arbitrator must enforce the these Terms. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate may be decided by a court of competent jurisdiction.
The arbitrator shall apply the laws of the State of Oregon and decide all claims in accordance therewith, without regard to conflicts of law principles. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the ASP’s rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall remain in force, and an enforceable substitute term shall replace the offending provision that comes closest to effectuating the original intent.
You may reject this agreement to arbitrate by mailing Bivo a written opt-out notice (“Opt-Out Notice”) at the address listed on the Site. The Opt-Out Notice must be postmarked no later than thirty days after the date you accept these Terms by accessing or using the Site for the first time. The Opt-Out Notice must include your name, address (including street number and address, city, state, and zip code), phone number, and, if applicable, the email address you used to log in to the Bivo account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms will continue to apply.
In the event you provide Bivo with an effective Opt-Out Notice, or if this agreement to arbitrate is held unenforceable for any reason, you agree to submit to the exclusive jurisdiction and venue in the federal and state courts located in Multnomah County, Oregon for all claims of any type arising out of or related to these Terms or your use of the Site. Oregon law shall govern all claims, without regard to choice of law principles. You agree that any claim brought or attempted to be brought in any court or tribunal outside of Multnomah County, Oregon, shall be promptly dismissed for lack of jurisdiction, improper venue, or both.
Before commencing any legal proceeding against Bivo (including arbitration or, if an effective Opt-Out Notice has been served or if the claim is otherwise deemed inarbitrable for any reason, in a court of competent jurisdiction), you must provide Bivo with a written notice of claim that states in detail the alleged nature and basis for your claim. Notice must be mailed by first class mail, return receipt requested, to the address listed on the Site. All claims of any type must be commenced, if at all, within 180 days of the event that gave rise to the claim. You agree that failure to strictly comply with the provisions of this section shall result in dismissal of your claim(s).
12. Miscellaneous.
These Terms, including the Privacy Policy, constitute the entire agreement between you and Bivo and govern your use of the Site, Services and any transactions you may have with Bivo through the Site and completely replaces and supersedes any prior agreements between you and Bivo related to the subject matter of these Terms. In the event any other information posted on the Site conflicts with the terms of these Terms, these Terms shall govern. No oralstatements made by any party shall alter these Terms or their interpretation.
Notwithstanding the foregoing, you understand that Bivo may make changes to these Terms from time to time in its sole discretion. Your continued use of the Site following the posting of changes to these Terms will be considered your consent to those changes. When changes are made, Bivo will update the Terms on the Site. Bivo is not required to provide you with notices regarding changes to the Terms. Bivo’s failure to exercise or enforce any legal right or remedy contained in these Terms or otherwise available at law or in equity, shall not constitute a waiver of any kind.
If, in a proceeding that involves claims arising under or related to these terms, an arbitrator or court of competent jurisdiction rules that any provision of these Terms is invalid or unenforceable, then that provision will be severed and replaced by a substitute term that is enforceable and that most closely effectuates the stricken term’s intent, and the remainder of these Terms shall remain valid and enforceable as though the severed provision had never been included.
The Site is controlled and operated from within the United States. Without limiting these terms in any other respect, Bivo makes no representation that the Site, Contents, or Services are appropriate or available for use in other locations. Accessing or using this Site from any territory where such use is illegal is prohibited. Those who choose to access the Site from outside the United States are responsible for compliance with applicable laws.
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