CONGRATULATIONS AND WELCOME!!
Collection of Information
Information You Provide to Us
We collect information you provide directly to us. For example, we collect information when you register for a Fishy Bizness account, sign up for a subscription, participate in any interactive features of the Sites, subscribe to a newsletter or email list, participate in a survey, contest, promotion or event, order or purchase (either for yourself or for another person) products made available through the Sites (collectively, the “Products”), communicate with us via third party social media sites, request customer support or otherwise communicate with us.
The types of information we may collect from you include:
(a) Account Information, such as your name, email address, password, postal address, phone number, subscription, delivery, preferences and any other information you choose to provide;
(b) Transaction Information, such as information about the Products you purchase, shipping and delivery information and information related to returns, refunds and cancellations. We may also collect and store limited payment information from you, such as payment card type and expiration date and the last four digits of your payment card number; however, we do not collect or store full payment card numbers and all transactions are processed by our third party payment processor.
(c) Information About Others, such as the name and email addresses of gift recipients when you purchase gifts through the Sites or invite friends or family to try the Sites or Products.
(d) Other Information You Choose to Provide, such as when you participate in a survey, contest, promotion or interactive area of the Sites or when you request technical or customer support.
Information We Collect Automatically
When you access or use the Sites, the types of information we may automatically collect about you include:
(a) Log Information: When you visit the Sites, our servers automatically record certain log file information, such as your Internet Protocol (“IP”) address, operating system, browser type and language, referring URLs, access times, pages viewed, links clicked and other information about your activities on the Sites.
(b) Mobile Device Information: We collect information about the mobile device you use to access or use the Sites, including the hardware model, operating system and version, unique device identifiers, mobile network information and information about your use of our mobile applications. With your consent, we may also collect information about the location of your device and access and collect information from certain native applications on your device (such as your device’s camera, photo album and phonebook applications) to facilitate your use of certain features of the Sites. For more information about how you can control the collection of location information and/or our access to other applications on your device, please see “Your Choices” below.
(c) Information Collected by Cookies and Other Tracking Technologies: We and our service providers use various tracking technologies, including cookies and web beacons, to collect information about you when you interact with our Sites, including information about your browsing and purchasing behavior. Cookies are small data files stored on your hard drive or in device memory that help us improve the Sites and your experience, see which areas and features of the Sites are popular, and count visits. Web beacons are electronic images that may be used in the Sites or emails and help deliver cookies, count visits and understand usage and campaign effectiveness. For more information about cookies, and how to disable them, please see “Your Choices” below.
Information We Collect From Other Sources
We may also obtain information about you from other sources and combine that with information we collect directly. For example, we may collect information about you when you post content to our pages or feeds on third party social media sites, or if you use credentials (e.g., username and password) from a third party site to create or log into your Fishy Bizness account.
Use of Information
We may use information about you for various purposes, including to:
(a) Provide, maintain and improve the Sites and Products;
(b) Manage your account and send you related information, including confirmations, updates, technical notices, security alerts and support and administrative messages;
(c) Respond to your comments, questions and requests and provide customer service;
(d) Communicate with you about the Sites, Products, recipes, services, offers, surveys, events and other news and information we think may be of interest to you;
(e) Monitor and analyze trends, usage and activities in connection with the Sites;
(f) Detect, investigate and prevent fraudulent transactions and other illegal activities and protect the rights and property of Fishy Bizness and others;
(g) Personalize and improve the Sites and provide advertisements, content and features that match your profile or interests;
(h) Facilitate contests, sweepstakes and promotions and process and deliver entries and rewards;
(i) Link or combine with information we get from others to help understand your needs and provide you with a better experience; and
(j) Carry out any other purpose for which the information was collected.
Fishy Bizness is based in the United States, and the information we collect is governed by U.S. law. By accessing or using the Sites or otherwise providing information to us, you consent to the processing and transfer of information in and to the U.S. and other countries.
Sharing of Information
(a) With vendors, consultants and other service providers who need access to such information to carry out work or perform services on our behalf;
(b) We may make our postal address list available to certain third parties we believe may offer products or services of interest to you;
(c) When you participate in the interactive areas of the Sites or interact with us on third party social media sites, certain information that you provide may be displayed publicly, such as your name, photos and other information you choose to provide;
(d) In response to a request for information if we believe disclosure is in accordance with, or required by, any applicable law, rule, regulation or legal process;
(e) If we believe your actions are inconsistent with our Terms of Service and Use or other policies, or to protect the rights, property or safety of Fishy Bizness or others;
(f) In connection with, or during negotiations of, any merger, acquisition, sale of assets or any business, other change of control transaction or financing;
(g) Between and among Fishy Bizness and any current or future parent, subsidiary and/or affiliated company (eg. Littlefish, Inc.); and
(h) With your consent or at your direction.
We also may share aggregated or de-identified information, which cannot reasonably be used to identify you.
Social Sharing Features
The Sites may offer social sharing features and other integrated tools, such as the Facebook, Twitter and Pinterest buttons (e.g., “Like,” “Tweet” and “Pin It”), which let you share actions you take on the Sites with other media. Your use of such features enables the sharing of information with your friends or the public, depending on the settings you establish with the entity that provides the social sharing feature. For more information about the purpose and scope of data collection and processing in connection with social sharing features, please visit the privacy policies of the entities that provide these features.
Advertising and Analytics Services Provided by Others
Customized Ad Campaigns
We may also work with third party social media sites, such as Facebook, to serve ads to you as part of a customized campaign, unless you notify us that you prefer not to have information about you used in this way. For more information about how you can opt out of customized campaigns, please see “Your Choices” below.
Fishy Bizness takes reasonable measures to help protect information about you from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases, nor can we guarantee that the information you supply will not be intercepted while being transmitted to or from us over the Internet. In particular, email sent to or from the Sites may not be secure, and you should therefore take special care in deciding what information you send to us via email.
You may update, correct or modify information about you at any time by logging into your online account. If you wish to deactivate your account, please email us at email@example.com, but note we may continue to store information about you as required by law or for legitimate business purposes.
With your consent, we may collect information about your actual location when you use our mobile applications. You may stop the collection of this information at any time by changing the settings on your mobile device, but note that some features of our mobile applications may no longer function if you do so.
Native Applications on Mobile Device
Some features of our mobile applications may require access to certain native applications on your mobile device, such as the camera and photo storage applications (e.g., to take and upload photos) and the phonebook application (e.g., to send invitations to your contacts to try the Sites or Products). If you decide to use these features, we will ask you for your consent prior to accessing the applications and collecting information. Note that you can revoke your consent at any time by changing the settings on your device.
Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove or reject browser cookies. Please note that if you choose to remove or reject cookies, this could affect the availability and functionality of the Sites.
You may opt out of receiving our ads as part of a customized campaign conducted on third party social media sites, such as Facebook, by emailing us at firstname.lastname@example.org.
You may opt out of receiving promotional communications from us by following the instructions in those communications or by emailing us at email@example.com. If you opt out, we may still send you non-promotional communications, such as those about your account or our ongoing business relations.
With your consent, we may send promotional and non-promotional push notifications or alerts to your mobile device. You can deactivate these messages at any time by changing the notification settings on your mobile device or within our mobile applications.
Your California Privacy Rights
California law permits residents of California to request certain details about how their information is shared with third parties for direct marketing purposes. If you are a California resident, you may request this information once per calendar year by writing to us at Fishy Bizness, 5319 East Speedway Blvd, Tucson, AZ 85712.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Fishy Bizness account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
3. Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Fishy Bizness account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Sites on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Fishy Bizness account, you also consent to receive electronic communications from Fishy Bizness (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. Terms of Sale
4.1. Product Subscriptions; Continuous Subscriptions; Cancellation Policy
Product Subscriptions. We offer different subscription plans for some Products. For more information about our Product Subscriptions, please visit our website. Note that we do not currently deliver Products to every location, so please visit our website to see if we deliver to your area.
Continuous Subscriptions. WHEN YOU REGISTER FOR A PRODUCT SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) FISHY BIZNESS (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU FOR YOUR PRODUCT SUBSCRIPTION PER THE RECURRING SHIPMENT TERM THAT YOU SELECT (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR PRODUCT SUBSCRIPTION CONTINUES, AND (B) YOUR PRODUCT SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. YOU MAY SKIP A SHIPMENT AS OFTEN AS YOU'D LIKE BY USING THE “SKIP-A-SHIPMENT” FUNCTION ON OUR WEBSITE.
Cancellation Policy. IN ORDER TO CANCEL YOUR PRODUCT SUBSCRIPTION, ON OR BEFORE THE “CHANGEABLE BY” DATE REFLECTED IN YOUR ACCOUNT SETTINGS YOU MUST EMAIL US AT firstname.lastname@example.org AND FOLLOW THE INSTRUCTIONS IN THE EMAIL WE SEND YOU IN RESPONSE TO YOUR CANCELLATION REQUEST. ANY PRODUCT ORDER THAT HAS A DELIVERY DATE THAT PRECEDES THE “CHANGEABLE BY” DATE HAS BEEN PROCESSED AND CANNOT BE CANCELLED, AND YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED PRIOR TO THE CANCELLATION OF YOUR PRODUCT SUBSCRIPTION.
In the event you cancel your Product Subscription, please note that we may still send you promotional communications about Fishy Bizness, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4.2. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Fishy Bizness account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Product Subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount. You also acknowledge that in the case that you are purchasing and paying for a subscription, your credit card may be charged prior to your Products actually being shipped.
4.3. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. We will also not be able to notify you of changes in any applicable taxes. The shipment of Products, as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies set forth in Section 4.1.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of live Products and market conditions beyond our control, we may be required to make substitutions from time to time. You will be offered the option to authorize us to substitute one size up or down from your size of choice at the time of Product selection. If you opt to not authorize us to substitute size, this may affect the availability of the Product item you have chosen.
We will collect applicable sales tax on Products shipped to the states for which we determine we have a duty to collect sales tax. If an item is subject to sales tax, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates.
4.5. Shipping and Handling
Although our Product shipment purchases sometimes may include shipping costs, you agree to pay any applicable shipping and handling charges shown at the time you make a purchase. We reserve the right to increase, decrease, add or eliminate shipping and handling charges from time to time at our sole discretion and without prior notice. Any and all shipping and handling charges will be published on our web site and by completing your order you acknowledge that you have read and agree to the most current shipping and handling fees. Generally, shipping is handled by a third party courier and any delivery commitment made by Fishy Bizness is based solely on the couriers’ commitment. Actual delivery dates and times may vary due to circumstances beyond the control of Fishy Bizness and we assume no liability for said variances. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for being present to accept your shipment on the first delivery attempt by the courier. You specifically agree to be bound by the terms contained in the “Shipping” and “Guarantee Policy” sections of the Site.
If you, or your representative, are not at home when your Product delivery arrives, all guarantees on the Products are immediately voided. Advance planning by you should be made for PROMPT receiving and unpacking as well as proper acclimation of your Products. You are responsible for unpacking and acclimating your live Product shipment within a maximum of one (1) hour after it is delivered to your requested destination according to the Acclimation Procedures on our Site.
In the case of inclement weather or other events beyond our control that interfere with the courier’s ability to deliver your Order, we will attempt to reschedule your Order as soon as reasonably possible.
4.7. No Resale
You are not permitted to resell or otherwise use the Products for commercial purposes.
4.8. Returns and Refunds
If you are dissatisfied with a product, please contact us at 520-795-1123
or email@example.com within the terms contained in our “Guarantee Policy” document.
5. License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Fishy Bizness logo, the Littlefish logo, and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Fishy Bizness or our licensors (Littlefish) or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as Fishy Bizness permits, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Fishy Bizness or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Fishy Bizness or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement.
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Fishy Bizness,” the Fishy Bizness logo and any other Fishy Bizness Product or service Fishy Biznesss, logos or slogans that may appear on the Sites or Products are trademarks of Fishy Bizness and may not be copied, imitated or used, in whole or in part, without our prior written permission. “Littlefish”, the Littlefish logo and any other Littlefish Product or service Littlefish logos or slogans that may appear on the Sites or Products are trademarks of Littlefish and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Fishy Bizness” or any other Fishy Bizness trademark or Product or service Fishy Bizness of Fishy Bizness without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Llittlefish” or any other Littlefish trademark or Product or service of Littlefish without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Fishy Bizness and Littlefish and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product Fishy Biznesss and company Fishy Biznesss or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by Fishy Bizness or Littlefish, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Fishy Bizness or Littlefish.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Fishy Bizness or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Fishy Bizness or Littlelfish logo or other proprietary graphic of Fishy Bizness or Littlefish to link to the Sites without our written permission. Further, you may not use, frame or utilize framing techniques to enclose any Fishy Bizness or Littlefish trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our Fishy Bizness or Littlefish written consent.
Fishy Bizness and Littlelfish make no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control and we provide these links to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Use or attempt to use another user’s account without authorization from such user and Fishy Bizness;
- Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
- Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access;
- Develop any third party applications that interact with User Content or the Sites without our prior written consent;
- Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality;
- Bypass or ignore instructions contained in the robots.txt file that controls all automated access to the Sites; or
- Use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts Fishy Bizness or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Fishy Bizness employee or paid blogger);
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent;
- User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Fishy Bizness or others to any harm or liability of any type.
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
12. Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Fishy Bizness’s Facebook page, Instagram page or Twitter feed), you hereby grant Fishy Bizness a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Fishy Bizness through the Sites or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Fishy Bizness to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Fishy Bizness, the Sites or the Products (collectively, “Feedback”). Feedback is nonconfidential and shall become the sole property of Fishy Bizness. Fishy Bizness shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Fishy Bizness, and our respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates (LIttlefish), agents, representatives, predecessors, successors and assigns (individually and collectively, the “Fishy Bizness Parties”), from and against all actual or alleged Fishy Bizness Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Sites, Content or Products by you or any third party you authorize to access or use such Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify Fishy Bizness of any third party Claims, cooperate with the Fishy Bizness Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Fishy Bizness Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Fishy Bizness.
YOU ARE SOLELY RESPONSIBLE FOR READING AND COMPLYING WITH THE TERMS AND CONDITIONS PUBLISHED IN THE ACCLIMATION, SHIPPING, FISH COMPATIBILITY, AND GUARANTEE SECTIONS OF THE SITE. THESE DOCUMENTS DETAIL THE PRECISE TERMS AND CONDITIONS THAT GOVERN OUR POLICIES AND LIMIT THE GUARANTEES WE PROVIDE.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING, SHIPPING, AND OTHER INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, AND THE AVAILABILITY AND VARIABILITY OF PRODUCTS. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
WITH THE EXCEPTION OF OUR WYSIWYG SECTIONS, PHOTOGRAPHIC IMAGES OF OUR PRODUCTS ARE STOCK IMAGES AND, AS SUCH, ARE NOT EXACTLY REPRESENTATIVE OF THE PRODUCTS BEING SOLD. WE DO NOT GUARANTEE THAT THE PRODUCT YOU PURCHASE AND RECEIVE IS AN EXACT LIKENESS OF THE PHOTOGRAPHIC IMAGE APPEARING ON OUR SITE.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL DRY GOODS PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER FISHY BIZNESS OR IMPLIED. FISHY BIZNESS DISCLAIMS ALL OTHER WARRANTIES, FISHY BIZNESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
BY ORDERING THE PRODUCTS, YOU AGREE THAT ALL LIVE PRODUCT SHIPMENTS WILL BE RECEIVED ON THE FIRST DELIVERY ATTEMPT BY THE COURIER, AND WILL BE OPENED AND ACCLIMATED WITHIN ONE (1) HOUR OF BEING DELIVERED TO YOU BY THE COURIER. YOU AGREE TO HOLD FISHY BIZNESS FREE OF ANY LIABILITY RESULTING FROM DELAYS IN ACCEPTING AND ACCLIMATING SHIPMENTS WITHIN ONE (1) HOURS OF DELIVERY. THIS PROVISION ALSO APPLIES TO ANY APPLICABLE “PEACE-OF-MINDTM” INSURANCE PURCHASED.
BY PLACING A SUBSCRIPTION ORDER WITH FISHY BIZNESS, YOU UNDERSTAND THAT YOU ARE AUTHORIZING A RECURRING SHIPMENT OF PRODUCTS (SUBSCRIPTION ORDER) PER THE SHIPPING FREQUENCY YOU SELECT. YOU UNDERSTAND AND ACCEPT THAT FISHY BIZNESS WILL SHIP YOU PRODUCTS PER YOUR SELECTION AND CHARGE YOUR CREDIT CARD ON FILE FOR THESE RECURRING SHIPMENTS, UNLESS YOU SPECIFICALLY CANCEL SPECIFIC SHIPMENTS USING OUR “SKIP-A-SHIPMENT” FUNCTION ON THE SITE OR CANCEL YOUR SUBSCRIPTION PER THE TERMS OF 4.1. FAILURE TO USE THE “SKIP-A-SHIPMENT” FUNCTION OR CANCELLATION WILL MEAN THAT ALL SHIPMENTS SENT TO YOU PER YOUR RECURRING SUBSCRIPTION ORDER WILL AUTOMATICALLY BE SENT AND CHARGED TO YOUR CREDIT CARD ON FILE. PER 4.1. BECAUSE YOU ARE PURCHASING A SUBSCRIPTION YOUR CREDIT CARD MAY BE CHARGED PRIOR TO PRODUCTS ACTUALLY BEING SHIPPED.
BY ORDERING LIVE ANIMALS FROM FISHY BIZNESS YOU UNDERSTAND THAT INVENTORY LEVELS AND ANIMAL HEALTH CAN AFFECT HOW YOUR ORDER IS FILLED. FISHY BIZNESS WILL NOT SHIP ANY ANIMAL THAT DOES NOT MEET IT’S MINIMAL STANDARDS FOR SHIPPING INCLUDING HEALTH, PHYSICAL DAMAGE, AND VITALITY. ADDITIONALLY, IT MAY OCCUR THAT ANIMALS ORDERED ARE NO LONGER IN INVENTORY AT THE TIME OF FULFILLMENT. ACCORDINGLY, THERE IS NO GUARANTEE WHATSOEVER THAT EVERY ANIMAL ORDERED FROM FISHY BIZNESS WILL ACTUALLY BE SHIPPED TO YOU. FISHY BIZNESS RESERVES THE RIGHT TO SHIP PARTIALLY FULFILLED ORDERS.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade Fishy Bizness, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.
All purchases made from Fishy Bizness are conducted strictly and specifically per the terms contained in this Terms of Service and Use contract. Accordingly, any and all rights to challenge and /or charge back any credit card charges made on a credit card used to purchase from Fishy Bizness are hereby unconditionally waived by the cardholder. Any issues related to duplicate charges, pricing errors, product quality, quantity issues and livestock DOA’s will be handled by Fishy Bizness and specifically limited according to the terms described in this Terms of Service and Use contract.
17. Limitation of Liability; Release
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE FISHY BIZNESS PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY FISHY BIZNESS PARTY, OR FROM EVENTS BEYOND THE FISHY BIZNESS PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE FISHY BIZNESS PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE FISHY BIZNESS PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM FISHY BIZNESS EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE FISHY BIZNESS PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE FISHY BIZNESS PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH FISHY BIZNESS PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
18. Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time.
19. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH FISHY BIZNESS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
19.1. Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade name, logos, trade secrets or patents, you and Fishy Bizness agree (a) to waive your and Fishy Bizness’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Fishy Bizness’s respective rights to a jury trial. Instead, you and Fishy Bizness agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
19.2. No Class Arbitrations, Class Actions or Representative Actions
You and Fishy Bizness agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Fishy Bizness and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Fishy Bizness agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Fishy Bizness agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
19.3. Federal Arbitration Act
You and Fishy Bizness agree that these Terms affect interstate commerce and that the enforceability of this Section 19 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
19.4. Notice; Informal Dispute Resolution
You and Fishy Bizness agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Fishy Bizness shall be sent by certified mail or courier to Fishy Bizness at 5319 East Speedway Blvd, Tucson, AZ 85712. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Fishy Bizness account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Fishy Bizness cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Fishy Bizness may, as appropriate and in accordance with this Section 19, commence an arbitration proceeding or, to the extent specifically provided for in Section 19.1, file a claim in court.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 10 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE FISHY BIZNESSS, LOGOS, TRADE SECRETS OR PATENTS, YOU AND FISHY BIZNESS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR FISHY BIZNESS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND FISHY BIZNESS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Fishy Bizness agree that (a) any arbitration will occur in the State of Arizona, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Arizona and the United States, respectively, sitting in the State of Arizona, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
19.6. Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
19.7. Rules of JAMS
The rules of JAMS and additional information about JAMS are available on the JAMS website (www.jamsadr.com). By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
If any term, clause or provision of this Section 19 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 19 will remain valid and enforceable. Further, the waivers set forth in Section 19.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
20. Governing Law and Venue
These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of Arizona, without regard to conflict of law rules or principles (whether of the State of Arizona or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Arizona and the United States, respectively, sitting in the State of Arizona.
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Fishy Bizness account: all defined terms and Sections 1, 3, 4, 5 (first paragraph only), 6, 7, 8 (second paragraph only), 9 through 24.
These Terms constitute the entire agreement between you and Fishy Bizness relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Fishy Bizness. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Fishy Bizness’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.