Terms & Conditions – With Pixie

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Terms & Conditions

PLEASE CAREFULLY READ THESE TERMS OF USE AND CONDITIONS OF SALE BEFORE PLACING AN ORDER ONLINE OR OTHERWISE USING THIS WEBSITE OR ANY OTHER WITH PIXIE WEBSITE. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND WITH PIXIE.

This website located at www.withpixie.com (the “Website”) is owned and operated by Pixie Foods LLC, and its affiliates (collectively “With Pixie” or “we”). These Terms of Use and Conditions for Sale, and any amendments or supplements to it, together with our Privacy Policy (collectively, the “Agreement”) form a legally binding agreement between you and With Pixie, and governs your access to and use of any With Pixie Website, any order you place through an With Pixie website and your use or attempted use of our products and services (collectively, “Your Use”).

By accessing or using the Website, you are agreeing to be bound by this Agreement and shall be enforceable in the same way as if you had signed this Agreement.

Eligibility

In order to use the Website, you must be 18 years or older and have the power to enter into a binding contract with us and not be barred from doing so under any applicable laws. The Website is not intended for children under the age of 18 and no person under the age of 18 may use the Website. If you use the Website, you are affirming that you are at least 18 years old.

Automatic Renewal Terms

If you are placing an order online or by telephone as part of our automatic renewal program, your membership in the program will remain in effect until it is cancelled. If you sign up for an automatic renewal program on the Website in connection with your purchase, the payment card you provide will be charged the amount stated on the web page corresponding to the product you purchase, and your payment card will automatically be charged the same monthly amount every thirty (30) or sixty (60) days thereafter.

IF YOU ARE A MEMBER OF OUR AUTOMATIC RENEWAL PROGRAM AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR AN ALTERNATE PAYMENT METHOD, EACH SHIPMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF EACH SUCCESSIVE SHIPMENT OR INSTALLMENT AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR INITIAL PURCHASE AND ENROLLMENT. You are obligated to provide current, complete, and accurate information for your billing account. You are responsible for promptly updating all information to keep your billing account current, complete, and accurate (e.g., change in billing address, credit card number, or credit card expiration date). You must promptly notify us if your credit card information is cancelled or is no longer valid at hello@withpixie.com.

Return/Refund Policy. We do not accept returns. With Pixie will refund your payment (with an authorized RMA number) within seven (7) business days if purchased using third-party credit, such as a Visa or MasterCard.

User-Generated Content

Subject to the limitations set forth herein, you may be able to upload or submit any photographs, comments, video clips, reviews and other communications and content to us (either directly or through our partners, including, without limitation, through Yotpo) the Website (“Your Content”). Unless we indicate otherwise, by posting or submitting Your Content to the Website, you grant With Pixie a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content, and the name submitted in connection with such content, throughout the world in any media now known or hereafter conceived. With Pixie and its affiliates are free to use any ideas, concepts or know-how contained in Your Content for any purpose whatsoever including, but not limited to, developing, manufacturing, distributing and marketing products using such information. With Pixie is under no obligation (i) to maintain Your Content in confidence; (ii) to pay to you or any third party any compensation for any Your Content; or (iii) to respond to any Your Content. You are and shall remain solely responsible for Your Content.

You represent and warrant that (a) you own or otherwise control all of the rights to Your Content; (b) that Your Content is accurate; and (c) that use of Your Content does not violate this Agreement and will not cause injury to any person or entity.

We will not be responsible or liable to you or to any third party for the content or accuracy of Your Content. With Pixie has the right, but not the obligation, to monitor and edit or remove any activity or content. With Pixie takes no responsibility and assumes no liability for Your Content or for any of Your Content posted by a third party. 

User Conduct

You must only use the Website for lawful purposes, and you must not use it in a way that infringes the rights of anyone else or that restricts or inhibits anyone else's enjoyment of the Website. You may not without our prior written consent:

(i) copy, reproduce, rent, lease, loan or sell content retrieved from the Website;
(ii) modify, distribute, or re-post any content on the Website for any purpose; or
(iii) use the content of the Website for any commercial exploitation whatsoever.

 

In using the Website, you further agree:

(a) not to disrupt or interfere with the security of, or otherwise abuse, the Website, or any services, system resources, accounts, servers, or networks connected to or accessible through the Website or an affiliated or linked Website;
(b) not to disrupt or interfere with any other user's enjoyment of the Website or affiliated or linked Website;
(c) not to upload, post, or otherwise transmit through or on the Website any viruses or other harmful, disruptive, or destructive files;
(d) not to use, frame, or utilize framing techniques to enclose any With Pixie trademark, logo, or other proprietary information (including the images found on the Website, the content of any text, or the layout/design of any page or form contained on a Website page) without With Pixie’ss express written consent;
(e) not to reverse engineer, or create derivative works based on the Website or any content (including, without limitation, any software) available through the Website.
(f) not to use meta tags or any other “hidden text” utilizing an With Pixie name, trademark, or product name without With Pixie’ss express written consent;
(g) not to deeplink to the Website without With Pixie’ss express written consent;
(h) not to create or use a false identity on the Website, share your account information, or allow any person besides yourself to use your account to access the Website;
(i) not use the Website to collect or store personal data about others;
(j) not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
(k) not to post any material that is knowingly false or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, or is otherwise in violation of any law. You further agree not to post any copyrighted material unless the copyright is owned by you;
(l) to be bound by the product submission policies of With Pixie, including that any product submission you may make to With Pixie will not be held in confidence by With Pixie and is not proprietary, that With Pixie may use the product submission and any aspect thereof for any purposes in With Pixie’s sole discretion; and
(m) to comply with all applicable laws regarding your use of the Website.

 

Protection of Intellectual Property Rights and License

You acknowledge that content available through the Website, including, without limitation, content in the form of text, graphics, software, music, sound, photographs, and videos, and content provided by suppliers, sponsors, or third-party advertisers (“Intellectual Property Rights”), is protected by copyright, trademarks, patents, or other proprietary rights and laws. You are hereby granted a non-exclusive, non-transferable, revocable, limited license to view, copy and print content retrieved from the Website for the sole purpose of using or placing an order via the Website, provided that you do not remove or obscure the copyright notice or other notices displayed on the content. Except as expressly provided in this Agreement, nothing contained in this Agreement or on the Website shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of With Pixie’s or a third party’s Intellectual Property Rights. Any rights not expressly granted herein are reserved.

Health Disclaimer Regarding Information Provided on the Website 

THE INFORMATION (INCLUDING, WITHOUT LIMITATION, ADVICE AND RECOMMENDATIONS) ON THE WEBSITE IS NOT INTENDED AS MEDICAL OR HEALTHCARE ADVICE, OR TO BE USED FOR MEDICAL DIAGNOSIS OR TREATMENT, FOR ANY INDIVIDUAL PROBLEM. IT IS ALSO NOT INTENDED AS A SUBSTITUTE FOR PROFESSIONAL ADVICE AND SERVICES FROM A QUALIFIED HEALTHCARE PROVIDER FAMILIAR WITH YOUR UNIQUE FACTS. ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROVIDER REGARDING ANY MEDICAL CONDITION BEFORE STARTING ANY NEW TREATMENT. WE SUGGEST CONSULTING WITH A PHYSICIAN BEFORE USING ANY WITH PIXIE PRODUCTS.

Disclaimer of Warranties With Respect to Use of the Website

EXCEPT WHERE INAPPLICABLE OR PROHIBITED BY LAW, THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WITH PIXIE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITH PIXIE DOES NOT MAKE ANY WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT IT WILL BE FREE OF DEFECTS. WITH PIXIE MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. WE PROVIDE INFORMATION ON THE WEBSITE FOR INFORMATIONAL PURPOSES ONLY. IT IS NOT MEANT AS A SUBSTITUTE FOR THE ADVICE OF A DOCTOR OR OTHER HEALTH CARE PROFESSIONAL. YOU SHOULD NOT USE THE INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FOR DIAGNOSING OR TREATING A MEDICAL CONDITION. YOU SHOULD CAREFULLY READ ALL PRODUCT INSTRUCTIONS PRIOR TO USE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WITH PIXIE OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

Links to Other Websites That With Pixie Does Not Control

The Website may provide links to other websites or resources, including advertisers, over which With Pixie has no control. These links are provided solely as a convenience to users and should not be construed as an endorsement by With Pixie of content, items, or services on those third-party websites. You access, view and use such website links, including the content, items or services on those websites, solely at your own risk. With Pixie makes no representations or warranties with respect to the content, ownership, or legality of any such linked websites. You agree that With Pixie has no responsibility or liability for the availability of such external websites or resources, or for the content, advertising, products, or other materials available through such websites or resources. When you leave the Website via a link to another website, you will be subject to the Privacy Policy and the Terms of Use of such other website.

Purchasing Items from Us

Product Representations. With Pixie reserves the right to discontinue or change specifications, and prospectively change prices on products, in each case without incurring any obligation to you. With Pixie takes reasonable precautions to try to ensure that the prices quoted on the Website are correct, and to describe the items available on the Website as accurately as possible and to depict the most up to date packaging. However, when ordering products, please note that With Pixie does not warrant that product descriptions are accurate, complete, reliable, current, or error-free, or that product packaging depicted on the Website will match the actual product that you receive. If a product described on the Website is not as described when you receive it, or the packaging on the Website does not match the product you receive, your sole remedy is to return it to us in an unused and undamaged condition in accordance with our Return Policy. With Pixie’s descriptions of, or references to, products not owned by With Pixie do not imply endorsement of that product, or constitute a warranty by With Pixie.

Pricing Errors and Omissions. Please be aware that prices, availability and other purchase terms are subject to change. We make every effort to ensure the accuracy of the information on the Website and to correct errors once discovered. If we discover an error has occurred after your credit card has been charged and your order is canceled as a result of the error, your credit card will be refunded the full amount of your order.

Order Placement and Acceptance. If you order a product, payment must be received by With Pixie prior to With Pixie’s acceptance of the order. With Pixie may require additional information regarding your order if you have not provided all of the information required, and may cancel or limit an order any time after it has been placed.

Your order is expressly conditioned on acceptance of this Agreement. Once a properly completed order, your authorization, and a form of payment have been received, we will promptly locate the item(s) you have ordered to place them in line for shipment. All items are subject to availability. We will promptly inform you if the product(s) you have ordered are not available and we may offer you alternative product(s) of equal quality and value.

With Pixie only accepts orders for personal use. You cannot resell items offered on the Website. If With Pixie discovers that you are placing orders with the intent to resell items offered on the Website, we may immediately cancel your order, suspend or terminate your account, and pursue any and all available legal remedies from you under applicable law. To the extent your conduct may be fraudulent, such as purchasing products through the use of fake or stolen cards, With Pixie will also report you to federal, state and/or local enforcements authorities.

Shipping and Risk of Loss. With Pixie will add applicable shipping and handling fees to your order. Unless otherwise noted, With Pixie will use commercially reasonable efforts to ship products within a reasonable time after receipt of your properly completed order. Although With Pixie may provide delivery or shipment timeframes or dates, you understand that those are With Pixie’s good-faith estimates and may be subject to change. You further understand that product availability may be limited and particular products may not be available for immediate delivery, in which case the products will be delivered when they become available. If your order will be delayed (either from the date specified at the time of order or, if no date was specified, beyond 30 days from the date of your order, With Pixie will use reasonable good faith efforts to contact you. If With Pixie cannot contact you or you no longer wish to receive the item, With Pixie will cancel the order and promptly refund the amount tendered. With Pixie may reject orders where the stated delivery address is outside the United States.

Sales Tax. In the United States, With Pixie is required to collect applicable state and local sales tax on orders shipped to certain states. Taxes apply to most merchandise, but some states exclude certain items, like food products. Some taxing authorities also require the taxable amount to include any shipping and handling charges, while others charge sales tax only on merchandise. With Pixie is required to follow the rules of each state. Your final order total will include the appropriate state and local taxes.

Payment Information. In ordering products through the Website, you agree to provide only true, accurate, current, and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or for which you are authorized to provide. With Pixie shall have the right to cancel your order or to suspend or terminate your account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to With Pixie, or for any other reason that we, in our sole discretion, deem appropriate.

International Orders. With Pixie may not directly sell certain With Pixie products in any jurisdiction other than the United States of America and Canada, as these products may not be approved for sale in other jurisdictions. While With Pixie may choose to accept orders for the purchase of its products from non-U.S. residents, the acceptance of such orders and the sale of such products will be subject to the following conditions:

(a) You agree that the purchase of any With Pixie products by you, as a non-U.S. resident, shall be (i) ex works With Pixie’s facilities in the United States per Incoterms 2010, with all title risk and loss in the products passing to you in the United States; and (ii) for your own personal use only and not for further resale or distribution in any manner;
(b) You agree not to order more than a ninety (90) day supply of any consumable products within any ninety (90) day period;
(c) You hereby expressly authorize and direct With Pixie to load and ship the purchased products to your shipping address, and to contract on your behalf with a courier company for that purpose; and
(d) You are the principal importer of record and will undertake responsibility for all applicable taxes, shipping, customs clearance, duties and import requirements from With Pixie’s facilities in the United States to your foreign shipping address.

 

 

Electronic Communications, Signatures and Agreements

The information communicated on the Website constitutes an electronic communication. When you communicate with With Pixie through the Website or via other forms of electronic media, such as e-mail, you are communicating with With Pixie electronically. You agree that With Pixie may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that With Pixie provides to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication (e.g., by With Pixie or you).

You further acknowledge and agree that by clicking on the button labeled “SUBMIT”, “DOWNLOAD”, “I ACCEPT” or such similar links as may be designated by With Pixie, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by this Agreement and any hyperlinks contained herein. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE WEBSITE OR SERVICES OFFERED BY WITH PIXIE. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.

Communications with With Pixie

To the extent permissible by applicable law, you acknowledge that telephone calls to or from With Pixie are monitored and recorded and you agree to such monitoring and recording. 

You verify that any contact information provided to With Pixie, including, but not limited to, your mailing address, shipping address, e-mail address, residential phone number, and mobile phone number is true and accurate. You further verify that you are the telephone subscriber and/or that you own any telephone numbers that you provide to With Pixie. You acknowledge that by voluntarily providing your telephone numbers to With Pixie, you expressly agree to be contacted at the telephone numbers you provide.

You consent to receive e-mails, pre-recorded voice messages and/or autodialed calls (including text messages) by or on behalf of With Pixie relating to this Agreement, any purchase or transaction with With Pixie, matters related to your account (including debt collection), and promotions regarding With Pixie products. These communications may be made by or on behalf of With Pixie, even if your phone number is registered on any state or federal Do Not Call list. You acknowledge that you may incur a charge for these calls by your telephone carrier and that With Pixie will not be responsible for these charges.

With Pixie may obtain, and you expressly agree to be contacted at, e-mail addresses, mailing or shipping addresses and phone numbers provided by you directly or obtained through other lawful means, such as skip tracing. You agree to provide With Pixie notice within 30 days of any change to your contact information by writing to Pixie Foods LLC, 1470 Encinitas Blvd, #163, Encinitas, CA 92024: With Pixie Customer Service or emailing hello@withpixie.com. Your consent to this communications provision is not required to make any purchase with With Pixie.

 imitation on With Pixie’s Liability

EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES WILL WITH PIXIE, ITS SUPPLIERS, PARENTS, SUBSIDIARIES, REPRESENTATIVES, AFFILIATES, AGENTS OR OTHER REPRESENTATIVES BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS INCLUDES WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE RESULTING FROM (1) THE USE OF, OR THE INABILITY TO USE, THE WEBSITE; (2) THE USE OF, OR THE INABILITY TO USE, ITEMS PURCHASED ON THE WEBSITE; OR (3) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR ITEMS.

BECAUSE SOME JURISDITIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU

Indemnification

Except where otherwise inapplicable or prohibited by law, you agree to indemnify and hold harmless With Pixie, its directors, officers, employees, agents, co-branders, suppliers, subsidiaries, parents, and affiliates, from and against any and all liability, losses, claims, demands, disputes, damages, and costs of any kind, including, without limitation, reasonable attorneys' fees and costs of litigation resulting from or in any way connected with your breach of this Agreement.

Termination of Website

With Pixie may, in its sole discretion, and at any time, terminate or suspend its operation of the Website or your use of the Website, if With Pixie reasonably believes that you have breached any of the terms and conditions of this Agreement. Following termination, you will not be permitted to use the Website and With Pixie may, in our discretion, cancel any outstanding orders for the product.

Pre-Dispute, Mandatory Binding Arbitration, and Class Action Waiver

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATING TO ANY PURCHASE YOU MAKE VIA THIS WEBSITE, ANY INFORMATION YOU PROVIDE VIA THIS WEBSITE, THIS AGREEMENT (INCLUDING ITS FORMATION, PERFORMANCE, OR ALLEGED BREACH), AND YOUR USE OF THE WEBSITE WILL BE EXCLUSIVELY RESOLVED UNDER CONFIDENTIAL BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO BRING A LAWSUIT IN COURT AGAINST WITH PIXIE, INCLUDING THE RIGHT TO A TRIAL BY JURY, AND RIGHTS AVAILABLE IN A COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. ARBITRATION IS A FORM OF PRIVATE DISPUTE RESOLUTION IN WHICH PARTIES TO A CONTRACT AGREE TO SUBMIT THEIR DISPUTES AND POTENTIAL DISPUTES TO A NEUTRAL THIRD PERSON (CALLED AN ARBITRATOR) FOR A BINDING DECISION, INSTEAD OF HAVING SUCH DISPUTE DECIDED IN A LAWSUIT, IN COURT, BY A JUDGE OR JURY TRIAL.

YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

Generally. Arbitration is a method of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you, With Pixie, and/or any involved third party relating to your account, Your Use (defined here), your relationship with With Pixie, or these Terms of Use and Conditions of Purchase. This includes any and all claims that relate in any way to your use of the products, your attempted use of the products, and any act or omission by With Pixie or any third party related to your use or attempted use of the products. You, With Pixie, or any involved third party may pursue a Claim. With Pixie agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against With Pixie. By agreeing to arbitrate, you waive the right to go to court and agree instead to submit any Claims to binding arbitration. This arbitration provision sets forth the terms and conditions of our agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.

Exceptions to Binding Arbitration. As an exception to binding arbitration, you and With Pixie both retain the right to pursue, in a small claims court, any claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis. With Pixie will not demand arbitration in connection with any individual claim that you properly file and pursue in a small claims court, so long as the claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.

Mandatory Pre-Dispute Procedures. You acknowledge and agree that before initiating any Claim (subject to the exceptions above) against With Pixie, you will first give us an opportunity to resolve your problem or dispute. This includes sending a written description of your problem or dispute to us, including, but not limited to, information or representations related to our products and upon which you rely. You may send the written description by U.S. Pixie Foods LLC, 1470 Encinitas Blvd, #162, Encinitas, CA 92024. Except where otherwise prohibited by law. You and With Pixie agree to commence any arbitration proceeding within 1 year after the Claim arises (including the mandatory pre-dispute procedures outlined above) and that any proceeding commenced after 1 year shall be barred.

Arbitration Location. For your convenience, the arbitration may be conducted in the federal district where you reside. It may be held by telephone or through written submissions if both you and With Pixie agree.

Applicable Law. This Agreement has been made in and will be construed and enforced in accordance with the laws of the State of California, without regard to principles of conflict of laws thereof

Sponsoring Organization, Rules and the Arbitrator. You agree that any Claims shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal.

The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms of Use and Conditions of Purchase and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or With Pixie.

Arbitration Fees. Each party shall pay for their own filing, administrative, and arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses. However, if With Pixie is the prevailing party in the arbitration, applicable law may allow the arbitrator to award attorneys’ fees and costs to With Pixie.

Arbitration Award. The arbitrator shall follow substantive law and may order any relief if permitted by law. The arbitrator may award any form of individual relief, including injunctions and punitive damages, so long as they are in accordance with applicable law. The arbitrator may award costs or fees to a prevailing party, but only if the law expressly allows it. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject to appeal under the FAA.

Enforceability. This provision survives termination of your account or relationship with With Pixie, bankruptcy, assignment or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

Miscellaneous. This provision is the entire arbitration agreement between you and With Pixie and shall not be modified except in writing by With Pixie.

Amendments. With Pixie reserves the right to amend this arbitration provision at any time. Your continued use of any With Pixie Website, purchase of an With Pixie product, or use or attempted use of an With Pixie product, is affirmation of your consent to such changes. Should the changes to this arbitration provision be material, With Pixie will provide you notice. Your continued use of any With Pixie Website, purchase of an With Pixie product, or use or attempted use of an With Pixie product, after receiving such notice is affirmation of your consent to such material changes.

YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS FROM THE DATE OF PURCHASE, USE, OR ATTEMPTED USE OF AN WITH PIXIE PRODUCT (WHICHEVER COMES FIRST) BY WRITING TO PIXIE FOOD LLC, 1470 ENCINITAS BLVD, #162, ENCINITAS, CA 92024. FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING ANY WITH PIXIE PRODUCT YOU PURCHASED, USED OR ATTEMPTED TO USE WITHIN THE 30 DAYS AND THE DATE YOU FIRST PURCHASED, USED OR ATTEMPTED TO USE OF WITH PIXIE PRODUCTS. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.

Privacy

In addition to these Terms of Use and Conditions for Sale, your purchase of products through the Website is subject to the Website Privacy Policy, which is incorporated herein by reference.

Exclusive Venue for Other Controversies

Any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Agreement (other than an individual action filed in small claims court) shall be filed only in the state and federal courts located in San Diego, California and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.

Remedies for With Pixie

Notwithstanding the arbitration agreement contained in this Agreement, in order to avoid irreparable injury to With Pixie, in the event of any breach or threatened breach by you of the provisions of this Agreement, we shall be entitled to seek an injunction and other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting With Pixie from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.

Trademark Notices

WITH PIXIE™ is a trademark of Pixie Foods LLC. All other trademarks and service marks displayed on the Website are the property of With Pixie or their respective owners. You may not use or display any trademarks or service marks owned by With Pixie without With Pixie’s prior written consent. You may not use or display any other trademarks or service marks displayed on the Website without the permission of their owners.

Copyright Policy

It is With Pixie’s policy to respect the copyright and intellectual property rights of others. With Pixie may remove content that appears to infringe the copyright or other intellectual property rights of others. In addition, With Pixie may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, With Pixie complies with the Digital Millennium Copyright Act.

If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide With Pixie’s Copyright Agent the following information:

  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
  • A description of the copyrighted work that you claim has been infringed.
  • A description of where the material that you claim is infringing is located on the Website. You should identify the material with information reasonably sufficient to allow With Pixie to locate the material.
  • Your address, telephone number, and e-mail 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 by you, made under penalty of perjury (e.g., notarized affidavit), that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Promotions

One promotional code may be used towards one purchase at a time. You may not “stack” promotional codes or other offers.

Promotional codes may be redeemed at checkout on www.withpixie.com by adding the unique code to the field prior to submitting payment.

Rewards can only be used to purchase products on www.withpixie.com and are not redeemable for cash or gift cards.

Eligibility. Eligibility is limited to individuals in the US only.

No Spam. You must comply with all up-to-date “SPAM” laws. For example, emails must be created and distributed in a personal manner and bulk email distribution is strongly discouraged. Any distribution of your referral link that could constitute unsolicited commercial email or "spam" under any applicable law or regulation is expressly prohibited and will be grounds for immediate termination of your account and exclusion from With Pixie.

Right to Close Accounts. With Pixie reserves the right to close the account(s) of any Customer and to request proper payment if Customer attempts to use the With Pixie in a questionable manner or breaches any of these Terms & Conditions or is in violation of any law, statute or governmental regulation.

Right to Cancel Program or Change Terms. With Pixie reserves the right to cancel the or to change these Terms & Conditions at any time in its sole discretion.

Other Important Terms

With Pixie may assign, transfer, or sub-contract any of our rights or obligations under these Terms of Use and Conditions of Purchase to any third party at our discretion.

You acknowledge and understand that if With Pixie is unable to provide the products as a result of an event outside of its control, With Pixie will not be in breach of any of its obligations to you under this Agreement.

Any representations, warranties, and indemnification obligations made or undertaken by you will survive cancellation or termination of your account or relationship with With Pixie. No delay by With Pixie in exercising any right or remedy under these Terms of Use and Conditions of Purchase shall operate as a waiver of that right or remedy or shall affect With Pixie’s ability to subsequently exercise that right or remedy. These Terms of Use and Conditions of Purchase constitute the entire agreement between you and With Pixie relating to the subject matter herein. Any waiver must be agreed to by With Pixie in writing. These Terms of Use and Conditions of Purchase supersede any other terms previously published by us and any other representations or statements made by us to you, whether oral, written, or otherwise.

Contact Us

Questions about this Terms of Use should be sent to us at hello@withpixie.com