TERMS OF SERVICE

TERMS OF SERVICE

Last Updated on 15 May 2024

This website (the “Site”) is operated by Mighty Jaxx of America LLC.

Throughout the Site, the terms “we”, “us” and “our” refer to Mighty Jaxx of America LLC. We offer this Site, including all information, tools and services available from this Site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.

By visiting our Site and/or purchasing something from us, you engage in our “Service” and agree to be bound by the following terms and conditions (“Terms of Service”), including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the Site, including without limitation users who are browsers, vendors, customers, merchants, and/or contributors of content.

Please read these Terms of Service carefully before accessing or using our Site. By accessing or using any part of the Site, you agree to be bound by these Terms of Service. If you do not agree to any of these Terms of Service, then you may not access the Site or use any services. If these Terms of Service are considered an offer, acceptance is expressly limited to these Terms of Service.

Any new features or tools which are added to the current Site shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service without notice to you. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes.

The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms of Service.

SECTION 1 - ONLINE STORE TERMS

By agreeing to these Terms of Service, you represent that you are at least the age of majority in your country, state or province of residence, or that you are the age of majority in your country, state or province of residence and you have given us your consent to allow any of your minor dependents to use this Site.

You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).

SECTION 2 - GENERAL CONDITIONS

We reserve the right to refuse service to anyone for any reason at any time.

You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the Site through which the service is provided, without express written permission by us.

SECTION 3 - ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION

We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.

SECTION 4 - MODIFICATIONS TO THE SERVICE AND PRICES

Prices for our products are subject to change without notice.

We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time.

We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.

SECTION 5 – PAYMENT TERM

All orders made are final and non-refundable. Please review and confirm your order before making payment.

Payment terms are within our sole discretion and payment must be received by us before our acceptance of your order. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable import taxes and duties, if any.

SECTION 6 – RETURN & EXCHANGE

Please refer to our Return Policy here. Please contact us at help@mightyjaxx.com if you require assistance on your orders.

SECTION 7 – SHIPMENTS; DELIVERY; TITLE AND RISK OF LOSS

We will arrange for shipment of your item to you as soon as we can.

Shipping charges (if any) are specified during the ordering process, unless your order qualifies for free shipping as provided on the Site from time to time. Once the item has been shipped to you from our warehouse, the title and risk of loss is transferred to you.

Shipping and delivery dates are estimates only and cannot be guaranteed, and time of delivery for any items shall not be of the essence.

We are not liable for any delays in shipments or returns due to unpaid taxes.

All import taxes incurred are to be borne by you, the receiver. We reserve the right to fulfil orders for multiple items in separate shipments, and each shipment may attract separate import taxes or duties. As such, you may be responsible for multiple import taxes or duties notwithstanding that they may be orders for identical items or purchases made in a single transaction, or for any other reason. We are not responsible for any customs and taxes applied to your order. All fees imposed during or after shipping are the responsibility of the customer (sales tax, value added tax, custom duties and excise duties, etc.). Please refer to your country’s import and duty guidelines and regulations for more information.

We are not liable for any products damaged or lost during shipping. If you received your order damaged, please contact the shipment carrier directly to file a claim.

We do not inform customers of the delivery status. The shipping fee is charged only for one time shipment. We shall not be liable for next shipment charges due to wrong information provided by customer or re-delivery after customer is unavailable to take delivery in the first delivery. Any subsequent redeliveries after the first delivery will be subjected to additional charges.

SECTION 8 – INTELLECTUAL PROPERTY OWNERSHIP

Mighty Jaxx of America LLC and its licensors are and will remain the sole and exclusive owners of all intellectual property rights in and to each product and service made available on this Site and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, trademarks and other intellectual property rights. You do not and will not have or acquire any ownership of these intellectual property rights in or to the products made available through this Site, or of any intellectual property rights relating to those products or services.

Further, the Site and its content, features and functionality, including, without limitation, information, software, text, graphics, logos, button icons, images, audio clips, video clips, data compilations and the design, selection and arrangement thereof, are the exclusive property of Mighty Jaxx of America LLC, our licensors or other content suppliers, and are protected by copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, and may not be used or exploited in any way without our prior written consent. No right, title or interest in or to the Site or any Content is transferred to you and all rights not expressly granted are reserved. Any use of the Site that is not expressly permitted by these Terms of Service may be a breach of these Terms of Service and may violate copyright, trademark and other laws. “Content” shall mean all information such as the “look and feel” of the Site, data files, graphics, text, photographs, drawings, logos, images, sounds, music and video and audio files on the Site.

SECTION 9 - PRODUCTS OR SERVICES

Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our [Return Policy[1] ], and at our sole and final discretion.

We have made every effort to display as accurately as possible the colors and images of our products that appear at the Site. We cannot guarantee that your computer or any other device’s display of any color will be accurate.

We reserve the right, but are not obligated, to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at our discretion. We reserve the right to discontinue any product at any time.

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or will be fit for any purpose, or that any errors in the Service will be corrected.

SECTION 10 - ACCURACY OF BILLING AND ACCOUNT INFORMATION

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting you via the e-mail provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

You agree to provide current, complete and accurate purchase and account information for all purchases made at our Site. You agree to promptly update your account and other information, including your email address and shipping information so that we can complete your transactions and contact you as needed.

SECTION 11 - THIRD-PARTY SERVICES

We may provide you with access to third-party services over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such services “as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party services.

Any use by you of third-party services offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which services are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.

SECTION 12 - THIRD-PARTY LINKS

Certain content, products and services available via our Service may include materials from third parties. Third-party links on this Site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

SECTION 13 - PERSONAL INFORMATION

Your submission of personal information through the Site is governed by our [Privacy Policy[2] ].

SECTION 14 - ERRORS, INACCURACIES AND OMISSIONS

Occasionally there may be information on our Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability, or other information relating to our products or Services. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).

We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Service or on any related website should be taken to indicate that all information in the Service or on any related website has been modified or updated.

SECTION 15 - PROHIBITED USES

In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to collect or track the personal information of others; (h) to spam, phish, pharm, pretext, spider, crawl, or scrape; or (i) for any obscene or immoral purpose. We reserve the right to terminate your use of the Service or any related website by any means we choose, including, but not limited to, by deleting your account, for violating any of the prohibited uses.

SECTION 16 - DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY

We do not guarantee, represent or warrant that your purchase will be uninterrupted, timely, secure or error-free.

You agree that from time to time we may remove the product for indefinite periods of time or cancel the product launch at any time, without notice to you.

You expressly agree that your use of, or inability to use, the product is at your sole risk. All products and services delivered to you through Mighty Jaxx of America LLC are (except as expressly stated by us) provided “as is” and “as available” for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.

In no case shall Mighty Jaxx of America LLC, our directors, officers, employees, affiliates, including any subsidiary or parent companies, agents, contractors, interns, suppliers, service providers or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the service or any products procured using the Service, or for any other claim related in any way to your use of the service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.

SECTION 17 – INDEMNIFICATION

You agree to indemnify, defend and hold Mighty Jaxx of America LLC and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.

SECTION 18 – SEVERABILITY

In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, such determination shall not affect the validity and enforceability of any other remaining provisions.

SECTION 19 – TERMINATION

The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.

These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our Site.

If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination, and/or accordingly we may deny you access to our Services (or any part thereof).

SECTION 20 - ENTIRE AGREEMENT

The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.

These Terms of Service and any policies or operating rules posted by us on this Site or in respect to the Service constitutes the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service).

Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.

SECTION 21 – ARBITRATION

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY PROVIDE THAT YOU AND WE AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION AND INCLUDE A CLASS ACTION WAIVER AND JURY TRIAL WAIVER. This Arbitration Agreement supersedes all prior versions.

a.Applicability of Arbitration Agreement. In this Section 21 (the “Arbitration Agreement”), you and we agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to these Terms of Service or the use of the Services or any communications between you and us that are not brought in small claims court will be resolved by binding arbitration on an individual basis, except that you and we are not required to arbitrate any: (i) disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is an individual dispute and not a class action; (ii) disputes or claims where the only relief sought is injunctive relief; and (iii) disputes in which either party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, patents or other intellectual property rights. To be clear: the phrase “all claims and disputes” also includes claims and disputes that arose between us before the effective date of these Terms. In addition, all disputes concerning the arbitrability of a claim (including disputes about the scope, applicability, enforceability, revocability, or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.

b. Informal Dispute Resolution First. We want to address any disputes without needing arbitration. If you have a dispute with us that is subject to arbitration, then prior to initiating arbitration, you agree to email an individualized request (“Pre-Arbitration Demand”) to help@mightyjaxx.com so that we can work together to resolve the dispute. A Pre-Arbitration Demand is valid only if it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all. The Pre-Arbitration Demand must include: (i) your name, (ii) your name, telephone number, email address and mailing address or the name, telephone number, mailing address and email address of your counsel, if any, (iii) a description of your dispute, and (iv) your signature. Likewise, if we have a dispute with you, we will send an email or text message with our individualized Pre-Arbitration Demand, including the requirements listed above, to the email address or phone number associated with your account. If the dispute is not resolved within sixty (60) days of the date that you or we send your Pre-Arbitration Demand, arbitration may then be filed. You agree that compliance with this subsection is a condition precedent to commencing arbitration, and that the arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures. Notwithstanding any other provision of these Terms of Service, the Arbitration Agreement or ADR Services’ Rules, the party against whom an arbitration has been filed has the right to seek a judicial declaration in court regarding whether the arbitration should be dismissed for failure to comply with the informal dispute resolution process set forth in this subsection.

c. Arbitration Rules. The Federal Arbitration Act, including its procedural provisions, governs the interpretation and enforcement of this dispute-resolution provision, and not state law. If, after completing the informal dispute resolution process described above, you or we wish to initiate arbitration, the arbitration will be conducted by ADR Services, Inc. (“ADR Services”) (https://www.adrservices.com/). If ADR Services is not available to arbitrate, the arbitration will be conducted by National Arbitration and Mediation (“NAM) (https://www.namadr.com/). The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with these Terms. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

d. Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three, and the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the parties mutually agree otherwise.

e. Fees. If we are the party initiating an arbitration against you, we will pay all costs associated with the arbitration, including the entire filing fee. If you are the party initiating an arbitration against us, you will be responsible for the nonrefundable initial filing fee (the “Initial Filing Fee”). If, however, the amount of the Initial Filing Fee is more than you would have to pay to file a Complaint in the United States District Court for the Southern District of New York (or, for cases where that court would lack original jurisdiction, the New York County Supreme Court) (“Court”), we will pay the difference between the Initial Filing Fee and the amount you would have to pay to file a Complaint in Court. Otherwise, ADR Services sets forth fees for its services, which are available at https://www.adrservices.com/rate-fee-schedule/.

f. Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and us. The dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under law, the arbitral forum’s rules, and the Terms of Service. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

g. Settlement Offers and Offers of Judgement. At least ten (10) calendar days before the date set for the arbitration hearing, you or we may serve a written offer of judgment on the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance shall be submitted to the arbitration provider, who shall enter judgment accordingly. If the offer is not accepted prior to the arbitration hearing or within thirty (30) calendar days after it is made, whichever is first, it shall be deemed withdrawn and cannot be given as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover their post-offer costs and shall pay the offering party’s costs (including all fees paid to the arbitral forum) from the time of the offer.

h. Waiver of Jury Trial. YOU AND WE WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and we are instead electing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and us over whether to vacate or enforce an arbitration award, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.

i. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. This subsection does not prevent you or us from participating in a class-wide settlement of claims. Notwithstanding any other provision of these Terms of Service, the Arbitration Agreement or ADR Services’ Rules, disputes regarding the interpretation, applicability, or enforceability of this waiver may be resolved only by a court and not by an arbitrator. IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. IN SUCH CIRCUMSTANCES, ANY PUTATIVE CLASS, PRIVATE ATTORNEY GENERAL, OR CONSOLIDATED OR REPRESENTATIVE ACTION THAT IS PERMITTED TO PROCEED MUST BE BROUGHT IN A COURT OF PROPER JURISDICTION AND NOT IN ARBITRATION.

j. Right to Waive. Any rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this Arbitration Agreement.

k. Opt-out. You may opt out of this Arbitration Agreement. If you do so, neither you nor we can force the other to arbitrate. To opt out, you must notify us in writing no later than 15 days after first becoming subject to this Arbitration Agreement, which is the date that you first visit the Site, otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms of Service. If you opt out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. You may not opt out of only the class action waiver and not also the arbitration provisions. Your notice must include your name and address, the email address you used to set up your account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. You must email your opt-out notice to help@mightyjaxx.com.

l. Small Claims Court. Notwithstanding the foregoing, either you or we may bring an individual action in small claims court.

m. Arbitration Agreement Survival. This Arbitration Agreement will survive the termination of your relationship with us, including any revocation of consent or other action by you to end your use of the Service or any communication with us.

SECTION 22 - CHANGES TO TERMS OF SERVICE

You can review the most current version of the Terms of Service at any time on this page.

We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our Site. It is your responsibility to check our Site periodically for changes. Your continued use of or access to our Site or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.

SECTION 23 - CONTACT INFORMATION

Questions about the Terms of Service should be sent to us at help@mightyjaxx.com.
Please refer to our [Return Policy[3] ] and [Privacy Policy[4] ].