These terms and conditions (this “Agreement”) apply to your use of the websites located at www.GloFish.com, www.shop.GloFish.com, and other websites and social medial sites (collectively, the “Site”) operated by Yorktown Technologies, L.P. or its affiliates (collectively, “we,” “us” or “our”) and to your purchase of GloFish and other products through the Site (collectively, “Products”) sold by us. This Agreement shall apply unless you have a separate written agreement with us, in which case the separate agreement shall govern.
BY DOWNLOADING, INSTALLING, ACTIVATING OR USING ANY CONTENT AVAILABLE THROUGH THE SITE, OR BY ACCEPTING DELIVERY OF ANY PRODUCT, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO FOLLOW ALL APPLICABLE LAWS, DO NOT ACCESS THE SITE OR PURCHASE ANY PRODUCT.
1. Product Purchases
We make every effort to provide consistency in our Product offerings. However, availability may require that we terminate, change, suspend or discontinue aspects of the Site or the availability of any Products at any time. In addition, we may remove, modify or otherwise change any content, including Product descriptions and Product pricing, presented on this Site. We may also impose limits on certain Products, features or services, or restrict your access to all or any part of the Site, without notice or liability. When you purchase Products from us, we may use a third party to process payments as detailed on the applicable payment screen. All transactions will be in U.S. dollars.
We ship Products Monday through Thursday via overnight shipping. Orders received by 11 am ET are shipped the same day, Monday through Thursday. Orders received after 11 am ET on Thursday or anytime on Friday, Saturday or Sunday will be processed on Monday. We do not ship or deliver orders on weekends. All packages are shipped via overnight shipping. Shipping may be affected by holidays and inclement weather. We reserve the right to reschedule shipments for any reason, including inclement weather, at any time.
3. Limited Guarantee
We guarantee your fish will arrive alive and stay alive for fourteen days after delivery. If a fish you ordered from us does not arrive alive and stay alive for fourteen days after delivery, we will refund the purchase price of that fish in full, including the prorated cost of shipping. For example, if you order four fish and one of them does not arrive alive and stay alive for fourteen days after delivery, we will refund 25% of your actual shipping costs.
If you have received a fish that has not remained alive for fourteen days after delivery, please contact us or call us at the number provided below within 72 hours of receiving the dead fish or within 72 hours of the fish dying so we can assist you.
4. Proprietary Rights
All right, title and interest in the Products and the Site, including technology and trade secrets embodied therein and any content or developments created or provided in connection with or related to the Site (the “Content”), including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to us or our licensors, and you shall have no rights whatsoever in any of the foregoing. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Site, in whole or in part. All Content and materials included as part of the Site, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are our property and is protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and we own a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause us and our licensors irreparable injury, which may not be remedied at law, and you agree that we and our licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
The GLOFISH name, logo and the related names, design marks, product names, feature names and related logos (collectively, the “GloFish Marks”) are our trademarks and the GloFish Marks may not be used, copied or imitated, in whole or in part, without our express prior written consent. In addition, the look and feel of the Site (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of the Institute and may not be copied imitated or used, in whole or in part, without the express prior written consent of the Institute.
5. User Conduct – General
In using this Site, you agree:
- not to license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Site or any information, documents, software, products and services contained or other Content made available to you in the course of using the Site or use the Site to run or as part of a service bureau, outsourced, or managed services arrangement;
- not to republish, upload, post, transmit or distribute all or any portion of the Site or the Content in any way;
- not to disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers or networks connected to or accessible through the Site or affiliated or linked websites;
- not to knowingly or negligently permit other individuals or entities to use or copy the Site, or create Internet “links” to the Site or “frame” or “mirror” the Site on any other server or wireless or Internet-based device;
- not to access the Site to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Site, (c) copy any ideas, features, functions or graphics of the Site, (d) monitor its availability, performance or functionality, or (e) for any other benchmarking or competitive purposes;
- not access the Site if you sell or provide any service, software, or product that may compete with our services, software, or products (a “Competitor”);
- not to disrupt or interfere with any other user’s enjoyment of the Site or affiliated or linked websites;
- not to restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Site (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
- not to use or attempt to use another user’s account, service or system without our authorization, or create or use a false identity on this Site;
- not to transmit through or on this Site spam, chain letters, junk mail or any other type of unsolicited mass email to people or entities who have not agreed to be part of such mailings;
- not to attempt to probe, scan or test the vulnerability of our system, account or network or any of our customers or suppliers or those of any other party;
- not to divulge your username and password, if applicable, to others either on or off the Site;
- not to attempt to obtain unauthorized access to the Site or portions of the Site which are restricted from general access; and,
- not to restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Site or any of our hosts, servers, backbone networks, nodes or services, or otherwise cause a performance degradation to any of our facilities used to deliver Products; and
- not to attempt to use or gain unauthorized access to our data, accounts, hosts, systems or networks or any of our customers or suppliers, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access.
In addition, you agree that you will comply with all applicable local, state, national and international laws and regulations, including but not limited to United States export restrictions, that relate to your use of or activities on this Site. This Site is controlled and operated in the United States. If you are in a jurisdiction which restricts you from accessing this Site, do not access or use this Site. We make no representation that the Site is appropriate or available for use outside the United States.
When you visit the Site, you may provide us with personal information you knowingly choose to disclose. When you submit information voluntarily, such as through registration forms, order forms, surveys, sweepstakes or contests, discussion forums or product reviews, we collect and store that information and we may use it as described below.
In addition, we automatically collect information as you browse the Site. When you browse the Site, you or your browser may transmit information that we automatically collect. For example, we may log your internet IP address, the Web pages you visit, the time of your visit, and other click-stream data. This information may be combined with other personal information you have provided. We may also collect information regarding the type of computer, operating system and browser you are using. We use this information, among other things, to improve the performance of our Site.
We may also place “cookies” on your computer’s hard drive. These cookies automatically identify your browser to our server whenever you interact with the Site. We use the cookies to record Site statistics. You can change your browser settings to prevent the acceptance of cookies.
Use of Information
We use your personal information to communicate with you in connection with your use of the Site, to respond to your questions, or to send you material and information you request. You may elect not to receive these communications, either when you register at the Site or by opting out at a later time. We may also prepare and keep statistical records and other data about you and other users of the Site, but we do that in a way that does not identify you or any other user personally. We may hire third parties to help us collect and analyze this data, and we may share the statistical data with third parties
Except in the limited circumstances stated in this paragraph, we do not sell, rent, license, trade or otherwise disclose the personal information of visitors to the Site to unaffiliated third parties. We may disclose your information to service providers who assist us in operating the Site or engaged in fulfilling your order or otherwise operating our business. We may also share such information with third parties to provide you with the Products and services you request or in which we believe you may otherwise be interested. We may also disclose information about you if and when we believe it is necessary to comply with any law, rule, court order, or subpoena, or to enforce our legal rights or this Agreement, or in connection with a sale, acquisition, merger or other business combination of our business with a third party.
Changing and Removing Information
You may notify us that you would like to change your information or that you no longer wish to receive communications from us by either selecting “opt-out” from the email communication you received from us or sending an email to the address we’ve included in Section 13 below. If you elect to opt-out of receiving communications from us, we may still communicate with you regarding a specific order that you placed with us for a Product.
Policy with Respect to Children
Children under the age of thirteen are not allowed to provide us with personally identifiable information either online or offline. If we learn that a child under the age of thirteen has provided us with personally identifiable information, we will immediately purge that information from our files and make reasonable efforts to notify the child’s parent or guardian. We do not disclose a child’s personally identifiable information to third parties. We do not provide a forum for children to publicly post or otherwise distribute personally identifiable contact information without prior parental consent.
7. User Content
The Site may allow you and other parties to post data, text, help, opinions, advice, statements, reviews, comments, photographs, and other materials and information that will be accessible by authorized users of the Site (“User Content”). All User Content is the sole responsibility of the person from whom the User Content originated and not us, or our members, affiliates, directors, officers, or employees. We may review and delete any User Content, in whole or in part, that in our sole judgment violates these terms or that might be offensive, illegal, or that might violate the rights of or harm any third parties. Nonetheless, under no circumstances will we or our members, directors, officers, or employees be held liable for any loss or damage caused by your reliance on User Content obtained through the Site. It is your responsibility to evaluate the User Content available through the Site. Although User Content will not be pre-screened or reviewed, we reserve the right to refuse or delete any User Content.
THIS SITE AND THE CONTENT AVAILABLE THROUGH IT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY AGREE THAT USE OF THIS SITE AND/OR ITS CONTENT IS AT YOUR SOLE RISK. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH IN THIS AGREEMENT, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.
YOU EXPRESSLY AGREE THAT USE OF THIS SITE, INCLUDING ALL CONTENT ACCESSED FROM OR THROUGH THE SITE, IS AT YOUR SOLE RISK. YOU UNDERSTAND AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR BUSINESS, YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
YOU ACKNOWLEDGE THAT WE DO NOT CONTROL INFORMATION, PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES OUTSIDE THE SITE. EXCEPT AS OTHERWISE AGREED IN WRITING, WE DO NOT ASSUME ANY RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF ANY ADVICE, OPINION, STATEMENT OR OTHER CONTENT OR OF ANY PRODUCTS OR SERVICES DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES REFERENCED WITHIN THE SITE OR OUTSIDE THE SITE. WE DO NOT MAKE ANY WARRANTY THAT THIS SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS, OR THAT THIS SITE OR ITS CONTENT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS SITE OR ITS CONTENT OR AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THIS SITE. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, WILL WE OR OUR PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THIS SITE OR ANY PRODUCT ACQUIRED THROUGH THE SITE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK. TO THE FULLEST EXTENT POSSIBLE BY LAW, OUR MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SITE OR ANY PRODUCT YOU PURCHASE FROM US, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE PRICE THAT YOU PAID FOR THE PRODUCT PURCHASED VIA THE SITE OR $100, WHICHEVER IS GREATER. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU.
No part of the Site is directed to persons under the age of thirteen. IF YOU ARE UNDER THIRTEEN YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE SITE AT ANY TIME OR IN ANY MANNER.
11. Claims of Copyright Infringement
We respect the intellectual property rights of others, and require that the people who use the Site do the same. It is our policy to respond promptly to claims of intellectual property misuse. If you believe that your work has been copied and is accessible on the Site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:
- The electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material;
- Your name, address, telephone number, and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement made under penalty of perjury that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- If we receive such a claim, we reserve the right to refuse or delete material as described under these terms.
Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 (“DMCA”) is:
Yorktown Technologies, LP
Attn: Copyright Infringement
After receiving a claim of infringement, we will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, we will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity, and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We will take reasonable steps promptly to notify the user that we have removed or disabled access to such material.
Upon receipt of a proper counter notification under the DMCA, we will promptly provide the person who provided the initial notification of claimed infringement with a copy of the counter notification and inform that person that we will replace the removed material or cease disabling access to it in 10 business days. Unless our designated agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on the Site, we will replace the removed material and cease disabling access to it.
You may provide us with a counter notification by providing our copyright agent the following information in writing:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which we may be found and that you will accept service of process from the person who provided the initial notification of infringement.
12. Dispute Resolution
In the event that you and we are unable to resolve a dispute within thirty (30) days of written notice of the dispute, you and we agree to resolve such dispute through final and binding arbitration. You and we each agree to submit to the personal and exclusive arbitration of any disputes arising out of or relating to your use of the Site or purchase of any Product under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”). The AAA Rules and fee information are available at www.adr.org. The arbitration shall be held in Travis County, Texas, unless you and we otherwise agree in writing. You may not initiate any legal action or proceeding against us or any of our employees, managers, members or agents, in any other forum or location.
You further agree that you may resolve any dispute with us only on an individual basis, and that you may not bring any claim or demand as a plaintiff of, or otherwise participate as part of, any purported class, consolidated, or representative action or proceeding. In addition, unless you and we otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, consolidated or representative proceeding.
Notwithstanding the foregoing, either you or we may bring a lawsuit for injunctive relief to prevent and/or to stop (1) unauthorized use or abuse of the Site, (2) defamation, libel, or other false or misleading statements, or (3) any actual or threatened intellectual property infringement or unfair competition without first engaging in the arbitration process described above.
These terms will be governed by and construed in accordance with the laws of the State of Texas, and the federal laws of the United States of America, without giving effect to its conflict of laws provisions. You agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within Travis County, the State of Texas.
These terms constitute the entire agreement between you and us governing your use of the Site. Should any provision in these terms be found invalid or unenforceable for any reason, then that provision will be deemed severable from these terms and will not affect the validity or enforceability of the remaining provisions. You agree that any claim arising out of or related to these terms or your use of the Site must be filed within one year after it arose or be permanently barred.
Please visit our contact page at https://www.glofish.com/contact-us/ to contact us with any questions regarding these terms.
Last Updated: April 3rd, 2017