Applicability: These terms and conditions of sale ("Terms") are the only terms governing Bivo’s sale of goods to the buyer named hereon ("Buyer") the accompanying order acknowledgment and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, except that the terms and conditions of a signed contract between Bivo and Buyer shall prevail to the extent they contradict these Terms. These Terms prevail over any of Buyer's terms and conditions of purchase, regardless whether or when Buyer submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. These Terms may be modified only in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
Acceptance: All purchase orders are subject to acceptance by Bivo. Unless agreed prior, Bivo will only accept purchase orders via electronic methods or phone for small quantities. Bivo will consider EDI integration on request, but compliance with buyers EDI requirements is not guaranteed. Bivo will not be held liable for any costs associated with buyers EDI requirements.
Delivery: Bivo may ship goods beginning up to two weeks before the designated ship date, until the cancellation date if provided. Bivo shall have no liability to Buyer or others for any failure to timely ship any order, or for any delays, loss or damage of the goods in transit. Buyer’s exclusive remedy shall be cancellation of the order. Title and risk of loss passes to Buyer upon Bivo’s delivery of the goods at the Delivery Point. For FOB shipments title and risk of loss passes to Buyer upon pick up of goods at warehouse.
Shipping Terms: Unless otherwise agreed in writing by the parties, all deliveries shall be Ex-Works (Incoterms 2010) Bivo’s warehouse. Bivo shall deliver the goods to its warehouse the ("Delivery Point") using Bivo’s standard packaging and shipping methods. Buyer shall take delivery of the goods within three days of Bivo’s notice that the goods are ready at the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the goods at the Delivery Point.
Quantities: Bivo may, without liability or penalty, make partial shipments of goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's order. If Bivo delivers to Buyer a quantity of goods of up to 20% more or less than the quantity set forth in the Order Acknowledgment, Buyer shall not be entitled to object to or reject the goods or any portion thereof by reason of the surplus or shortfall, and shall pay for such goods the price set forth in the Order Acknowledgment adjusted pro rata.
Security Interest: As collateral security for the payment of the purchase price of the goods, Buyer grants to Bivo a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds and accounts receivable) and products of the foregoing (together, “Collateral”). The security interest granted under this provision constitutes a purchase money security interest under applicable laws, including but not limited to the right to repossess and remove all or any part of the Collateral from Retailer. Bivo may enter Buyer’s premises to inspect and/or repossess the goods any repossession or removal shall be without prejudice to any other remedy of Bivo hereunder, at law or in equity. Buyer authorizes Bivo to file a financing statement naming Buyer as debtor and to take any further action deemed necessary or advisable to note or perfect the security interest granted herein. Buyer agrees, from time to time, to take any act and execute and deliver to Bivo any document that Bivo may deem necessary or advisable to transfer, create, perfect, preserve, protect and enforce this security interest. Buyer represents and warrants that the security interest in the Collateral granted herein is and always shall remain a first position security interest in the Collateral.
Bivo may repossess the goods at any time after: (i) The due date for payment of any of the goods (or any goods previously supplied) has passed; or (ii) Buyer has appointed a bankruptcy receiver or liquidator; (iii) Buyer or its parent company has commenced liquidation, (iv) Buyer commits any other act of insolvency, including any attempt to enter into debt compromise arrangements with its creditors; or (v) Buyer ceases, or gives notice of its intention to cease, carrying on business.
Acceptance or Rejection: Buyer shall inspect the goods within five days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the goods unless it notifies Bivo in writing of any Nonconforming Goods during the Inspection Period, including the number and condition of parcels received and the packing list or invoice reference number(s), together with such written or other evidence as may be reasonably required by Bivo. "Nonconforming goods" means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents. In the case of damaged freight, it is Buyer’s sole responsibility to notify the delivering carrier immediately of any damages, whether obvious or concealed. Bivo shall not under any circumstance be liable for any claims made more than 45 calendar days after delivery.
Returns:All returns will be subject to pre-approval. Bivo will accept returns only if Buyer has first obtained a Return Authorization number from Bivo Customer Service. If Buyer wishes to return Nonconforming goods or orders canceled prior to 30 days before ship date, Buyer must receive Return Authorization number from Bivo Customer Service within 45 days of receipt. If Buyer returns any goods to Bivo other than Nonconforming Goods, or if orders are canceled within 30 days of ship date, Bivo will charge a restocking fee of 15% of the purchase price.
Remedy: If Bivo determines that any goods are Nonconforming Goods, Bivo may, in its sole discretion, (i) replace such Nonconforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. Buyer agrees that the remedies set forth in this section are Buyer's exclusive remedies for the delivery of Nonconforming Goods.
Price: Unless otherwise agreed upon in writing, Buyer shall purchase the goods from Bivo at the prices set forth in Bivo's final published price list in force as of the date of Buyer's purchase order ("Prices"). All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes, except that Buyer shall not be responsible for any taxes imposed on, or with respect to, Bivo's income, revenues, gross receipts, personnel or real or personal property or other assets.
Payment: Unless otherwise agreed upon in writing, buyer shall pay all invoiced amounts due to Bivo in accordance with Bivo’s payment terms. For orders less than $500.00, a special handling charge may apply. Buyer shall make all payments hereunder by check/ACH/wire/ or other agreed upon method of payment and in US dollars. Buyer shall pay interest on all late payments at the lesser of 1.5% per month (18% annually) or the highest rate permissible under applicable law, calculated daily and com- pounded monthly. Buyer shall reimburse Bivo for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Bivo does not waive by the exercise of any rights hereunder), Bivo may suspend the delivery of any goods if Buyer fails to pay any amounts when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Bivo, whether relating to Bivo’s breach, bankruptcy or otherwise.
Preseason Orders: An order placed by a Buyer with an open credit account prior to the Deadline Date specified by Bivo terms sheet for each season (“Preseason Order”) shall be eligible for then-current Preseason Order terms, as set forth in Bivo’s seasonal term sheet. Any change to a Preseason Order is not binding on Bivo unless Bivo accepts it in writing at least 30 days prior to the ship date. If Buyer cancels more than 20% of a Preseason Order at any time, such order shall no longer be eligible for Preseason Order terms.
Limited Warranty: Except for the limited warranty of conformity to specifications, as set forth above, Bivo makes no warranty whatsoever with respect to the goods, including any warranty of merchantability, warranty of fitness for a particular purpose, warranty of title or warranty against infringement of intellectual property rights, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.
Limitation of Liability: In no event shall Bivo be liable for any consequential, indirect, incidental, special, exemplary, or punitive damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of these terms, whether or not the possibility of such damages has been disclosed in advance by buyer or could have been reasonably foreseen by buyer, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Bivo's aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid to Bivo by Buyer for the goods sold hereunder.
Insurance: During the term of this Agreement and for a period of three years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $5 million, with financially sound and reputable insurers. Upon Bivo's request, Buyer shall provide Bivo with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Bivo with ten days' advance written notice in the event of a cancellation or material change in Buyer's insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Bivo's insurers and Bivo.
Compliance with Law: Buyer shall comply with all applicable laws, regulations and ordinances in connection with the handling, marketing and sale of Bivo goods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the goods under this Agreement or any resale of the goods by Buyer. Buyer assumes all responsibility for shipments of goods requiring any government import clearance. Bivo may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.
Resale: Buyer shall not resell any of the Bivo goods except in compliance with all policies stated by Bivo, including Bivo’s MAP Policy, Brand Guidelines, Online Sellers Policy, and Sales Terms.
Termination: In addition to any remedies that may be provided under these Terms, Bivo may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Waiver: No waiver by Bivo of any of the provisions of this Agreement is effective unless expressly set forth in writing and signed by Bivo. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Force Majeure: Bivo shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Bivo including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Assignment: Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without Bivo’s prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
Governing Law and Jurisdiction: All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, without giving effect to any choice or conflict of law provision or rule. Buyer agrees to submit to personal jurisdiction in the State of Oregon and expressly waives any defense related to such jurisdiction. Any dispute arising out of or relating to this Agreement shall be submitted exclusively to and determined by binding arbitration in Multnomah County, Oregon before a single arbitrator administered by and in accordance with the rules of the Arbitration Service of Portland.
Notices: All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Acknowledgment or to such other address that may have been designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival: Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction/Arbitration and Survival.
Bivo LLC (“Bivo”) has established itself and its brand as a manufacturer and seller of premium water bottles. Our marketplace reputation is paramount. We will constantly strive to provide high quality products, maintain a premium marketplace, and strong support to our retail partners. To further enhance the Bivo brand in the marketplace, Bivo is unilaterally instituting a policy of minimum advertised price standards for Bivo products.
This Minimum Advertised Pricing Policy (“MAP Policy”) is effective as of ___February 1st, 2021_____ and applies to distributors and retailers, including catalog and internet retailers (collectively, “Resellers”), who resell Bivo products to end users.
We greatly value the efforts of all Resellers to distribute Bivo products and support our customers. This MAP Policy is adopted for the benefit of all Resellers and will be uniformly enforced. This MAP Policy shall work under the following guidelines:
To preserve the value of the Bivo Brand and to create an equitable marketplace in which Bivo Product is sold, all Bivo Dealers agree to adhere to Bivo’s Online Seller Policy as stated below.
Operating in accordance with the Policy will promote the integrity of the Bivo Brand and ensure that all Bivo Dealers gain the full commercial benefits of being Bivo Partners.
Digital Storefronts
3rdParty Marketplace
Paid Search
Brand Identity
Any wholesale partner submitting an order to the Bivo business-to-business (B2B) site is expressly agreeing to the terms and conditions set forth here. If you have any questions or concerns, please contact us at 406-425-0772 or thirst@drinkbivo.com
Welcome to the Bivo website, operated by Bivo, LLC. (“Bivo”) and located at drinkbivo.com (the “Site”). Bivo values your business and engagement with our online resources. We can be reached via e-mail at thirsty@drinkbivo.com. The following terms and conditions (“Terms”) and Privacy Policy govern your use of the Site to the exclusion of all other oral or written representations of any kind.
By accessing, viewing, or using the content, products, or services available on or through the Site, you certify that you have read, understand, and agree to be legally bound by these Terms, as well as Bivo’s Privacy Policy, which is incorporated herein by this reference. You further certify that you are 13 years of age or older and that you are legally competent and have authority to enter into this Agreement and perform the obligations set forth under this Agreement. You understand and agree that your use of the Site or any content, products or services made available on or through the Site (collectively, the “Services”) shall be conclusive evidence of your agreement to these Terms. If you are under thirteen years old, are not competent to enter this agreement, or if you disagree with, do not understand, or object to any of these Terms, you must immediately discontinue your use of this Site.
1. Account Registration and Order Placement.
In order to access certain content, material, products or services on the Site, you may be required to register and create an account. As part of the registration process, you may be asked to click to agree to these Terms, and may then be asked to select or submit a username and password. You may also be required to provide Bivo with certain information about yourself including some types of personally identifiable information, including your legal name, phone number, address, email address, gender, and age. You are solely responsible for ensuring that your password and account login are kept secret, safe, and secure. Bivo will not be liable for any misuse of your account if a third party has access to and uses your password and account login.
When placing an order through the Site, you will again be required to provide personal information, such as shipping address, billing address, and payment details. Additional information may be collected by Bivo or its third-party providers at this time for security and anti-fraud purposes. You represent and warrant that the personal information you provide to us via the Site is true, valid, complete and up-to-date, and you confirm that you are the person referred to in the shipping and billing information provided. Should any of the information you provide us, you should promptly login to your account and update such information directly on the Site.
Any personal information that you provide to us via the Site is subject to our Privacy Policy.
2. Purchases.
By purchasing products or services made available through the Site, you represent that you have reached the age of majority (which in most states is 18 years old) and have the legal capacity to enter into a contract. If you are under the age of majority or cannot lawfully enter into a contract, you may not register an account or make a purchase through Site. Bivo may use a third-party payment processor to process credit card transactions made through the Site. You are responsible for paying any governmental taxes imposed in connection with your use of the Site or the purchase or any products or services made available through the Site. To the extent that Bivo is obligated by law to collect such taxes, the applicable tax will be added to your billing account. All sales are subject to our shipping and return policies, which will be made available to you on the Site. Bivo will refund purchases only if product is returned within 30 days in new condition. Bivo will replace product that is factory defective at any time.
3. Restrictions on Use.
You agree to use the Site and the Services only for purposes that are permitted by these Terms and in compliance with all applicable laws and regulations.
You agree not to do or attempt to do any of the any of the following:
(a) Access any of the Services by any means other than through the interface that is provided by Bivo;
(b) Gain unauthorized access to Bivo’s computer system or engage in any activity that interferes with the performance of, or impairs the functionality or security of the Site, the Services, Bivo’s networks and computer systems;
(c) Access the Site or the Services through any automated means or with any automated features or devices;
(d) Access or collect any personally identifiable information, including any names, email addresses or other such information for any purpose, including, without limitation, commercial purposes;
(e) Reproduce, duplicate, copy, sell, trade, or resell any aspect or design feature of the Site for any purpose; and
(f) Reproduce, duplicate, copy, sell, trade or resell any products or services bearing any trademark, trade name, or logo owned by Bivo in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos, or that may dilute, diminish, or otherwise devalue Bivo’s products, branding, or trade name.
(g) Alter or modify any content or information on the Site.
Violation of this section will be pursued the appropriate legal action to the full extent of the law.
4. Content.
You agree that Bivo owns or licenses all information, materials, web infrastructure, organization, and all other content displayed on the Site (collectively, the “Content”). All Content is protected pursuant to all applicable laws governing ownership and use of intellectual property. Use of Bivo’s Content is prohibited and may violate federal and state trademark or copyright law. You agree that you have no rights of any kind in or to the Content.
Certain features of the Site may allow you to contribute feedback and other information to the Site for access, use, viewing, and commentary by other users of the Site (collectively, “Comments”). By posting Comments, you represent and warrant that Bivo’s use of the Comments, will not: (a) infringe any intellectual property, privacy, or other rights of any person or entity; (b) violate any law or regulation of any applicable jurisdiction; (c) violate any private or public agreement; or (d) constitute a disclosure of confidential information owned by or licensed to any third-party. Upon submission of Comments to Bivo, you grant us a worldwide, perpetual, irrevocable, transferable, license to use, distribute, modify, create derivative works based upon, and sublicense the Comments, all without compensation to you. Bivo has no obligation to: (a) preserve Comments; (b) maintain Comments in confidence; (c) compensate you for your Comments; or (d) respond to Comments.
5. Errors and Omissions.
The Site may from time to time contain inaccuracies or omissions that relate to product descriptions, pricing, promotions, offers, and availability. Bivo reserves the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information on the Site is inaccurate at any time (including after order placement) without prior notice.
6. Warranties Disclaimed; Use of Site at Your Own Risk.
Bivo may limit the items offered on the Site at any time, without prior notice. Bivo may alter the terms or duration of any special offer or sale promotion. Bivo is not liable in case of product unavailability. Bivo cannot guarantee and does not warrant that the color of any product will accurately match that your computer monitor's display.
Bivo disclaims all warranties, express or implied, regarding the Site’s content, functionality, or fitness for your use. Without limitation, Bivo does not warrant that: (a) the Site, Services, Content, information or links provided on the Site will meet your requirements; (b) your use of the Site will be uninterrupted, timely, secure or free from error; (c) defects in the operation or functionality of any software provided to you will be corrected. No advice or information obtained by you from Bivo or through the Site shall create any warranty.
You understand that the processing and transmission of any Content and Comments may be transferred unencrypted. Bivo does not guarantee or warrant the security or confidentiality of any information sent to or from the Site. Bivo shall not be liable for: (a) any error, omission, deletion, defect, delay, theft, destruction, unauthorized access to, or alteration of, any communication made through the Site; and (b) technical malfunction of any online service provider, computer equipment, software, email, or internet traffic, that may result in injury or damage to any person’s computer related to or resulting from your use of the Site.
YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE IS AT YOUR OWN RISK. No conditions, warranties or other terms (express or implied) apply to your use of the Site, Content or Services except as expressly set out in these Terms.
7. Limitation of Liability.
BIVO’S LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF OR PURCHASE THROUGH THE SITE SHALL NOT EXCEED THE PRICE YOU PAID FOR THE PRODUCT OR SERVICE THAT IS THE SUBJECT OF THE CLAIM. IF YOUR CLAIM DOES NOT INVOLVE THE PURCHASE OF ANY PRODUCT OR SERVICE, BIVO’S TOTAL LIABILITY SHALL NOT EXCEED $250. IN NO EVENT SHALL BIVO BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, NONECONOMIC, EXEMPLARY OR PUNITIVE DAMAGES. THIS LIMITATION OF LIABILITY APPLIES TO ALL CLAIMS OF ANY TYPE, REGARDLESS OF THE LEGAL THEORY ASSERTED. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON THAT PART SHALL BE SEVERED, THE REMAINDER OF THIS LIMITATION OF LIABILITY SHALL REMAIN IN FORCE. IF ANY PART OF THIS LIMITATION OF LIABILITY IS SEVERED DUE TO INVALIDITY OR UNENFORCEABILITY, A SUBSTITUTE PROVISION SHALL BE ENFORCED IN PLACE OF THE SEVERED PART THAT COMES CLOSEST TO EFFECTUATING THE PARTIES’ INTENT, WHICH IS TO LIMIT BIVO’S LIABILITY AS STATED HEREIN OR OTHERWISE TO THE MAXIMUM EXTENT ALLOWED BY LAW.
IF YOU ARE DISSATISFIED WITH THE SITE, THE SERVICES, OR THE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE AND SERVICES.
8. Indemnity.
You agree to appear defend, indemnify and hold harmless Bivo, its officers, directors, members, employees, agents, affiliates, licensors and suppliers, successors, and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) by any third-party arising from or related to: (a) your use of or access to the Site; (b) your violation of these Terms; (c) your violation of any third-party’s rights, including without limitation intellectual property or privacy rights; or (d) the use by any other person who accesses this Site using your Internet account, electronic device, or login. Your obligations pursuant to this section will survive these Terms and your use of the Site. Bivo may, in its sole discretion, assume the exclusive defense and control of any matter subject to the requirements of this section, and you shall cooperate fully with Bivo and pay all reasonable costs and attorneys’ fees incurred in connection with such defense. You may not settle any claim contemplated in this Section without Bivo’s prior written consent, which may be withheld in Bivo’s sole discretion.
///
///
9. Third-Party Content.
The Site may contain links or references to other websites outside of Bivo’s control. These websites may send cookies to you and may collect personally identifiable information about you and make use of that data in ways that this Site would not. Bivo has no control over these websites, and these Terms do not apply to them. Bivo is not responsible for those sites, or for any damage or losses that may result from the use of their content, goods, or services. Bivo encourages you to read the privacy policies and terms of use of the websites you enter.
10. Infringement Complaint Procedures.
If you believe that any content or postings on this Site violates your intellectual property or other rights, you must notify Bivo by email at thirsty@drinkbivo.com with a message that includes: (a) your name and, if applicable, the name of your company; (b) your contact information, including your email address; (c) the nature and substance of your complaint; and (d) the following statement: “The statements made in this message are true, complete and accurate, and may be used in evidence in court.” Bivo will make reasonable efforts to promptly evaluate complaints and make changes to the Site as Bivo deems appropriate in its discretion. The detail and completeness of your notice will assist us in that process. Failure provide the notice required in this section may result in a waiver of your claim.
11. Dispute Resolution.
Any dispute arising out of these Terms shall be resolved exclusively through final and binding arbitration held in Portland, Oregon pursuant to the rules of the Arbitration Service of Portland (“ASP”). Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. The arbitrator may award the same relief on an individual basis that a court can award to an individual, and an arbitrator must enforce the these Terms. All issues are for the arbitrator to decide, except that issues relating to arbitrability and the scope or enforceability of this agreement to arbitrate may be decided by a court of competent jurisdiction.
The arbitrator shall apply the laws of the State of Oregon and decide all claims in accordance therewith, without regard to conflicts of law principles. The arbitrator's award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Payment of all filing, administration, and arbitrator fees will be governed by the ASP’s rules. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this agreement to arbitrate shall remain in force, and an enforceable substitute term shall replace the offending provision that comes closest to effectuating the original intent.
You may reject this agreement to arbitrate by mailing Bivo a written opt-out notice (“Opt-Out Notice”) at the address listed on the Site. The Opt-Out Notice must be postmarked no later than thirty days after the date you accept these Terms by accessing or using the Site for the first time. The Opt-Out Notice must include your name, address (including street number and address, city, state, and zip code), phone number, and, if applicable, the email address you used to log in to the Bivo account to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the agreement to arbitrate. If you opt out of the agreement to arbitrate, all other parts of these Terms will continue to apply.
In the event you provide Bivo with an effective Opt-Out Notice, or if this agreement to arbitrate is held unenforceable for any reason, you agree to submit to the exclusive jurisdiction and venue in the federal and state courts located in Multnomah County, Oregon for all claims of any type arising out of or related to these Terms or your use of the Site. Oregon law shall govern all claims, without regard to choice of law principles. You agree that any claim brought or attempted to be brought in any court or tribunal outside of Multnomah County, Oregon, shall be promptly dismissed for lack of jurisdiction, improper venue, or both.
Before commencing any legal proceeding against Bivo (including arbitration or, if an effective Opt-Out Notice has been served or if the claim is otherwise deemed inarbitrable for any reason, in a court of competent jurisdiction), you must provide Bivo with a written notice of claim that states in detail the alleged nature and basis for your claim. Notice must be mailed by first class mail, return receipt requested, to the address listed on the Site. All claims of any type must be commenced, if at all, within 180 days of the event that gave rise to the claim. You agree that failure to strictly comply with the provisions of this section shall result in dismissal of your claim(s).
12. Miscellaneous.
These Terms, including the Privacy Policy, constitute the entire agreement between you and Bivo and govern your use of the Site, Services and any transactions you may have with Bivo through the Site and completely replaces and supersedes any prior agreements between you and Bivo related to the subject matter of these Terms. In the event any other information posted on the Site conflicts with the terms of these Terms, these Terms shall govern. No oralstatements made by any party shall alter these Terms or their interpretation.
Notwithstanding the foregoing, you understand that Bivo may make changes to these Terms from time to time in its sole discretion. Your continued use of the Site following the posting of changes to these Terms will be considered your consent to those changes. When changes are made, Bivo will update the Terms on the Site. Bivo is not required to provide you with notices regarding changes to the Terms. Bivo’s failure to exercise or enforce any legal right or remedy contained in these Terms or otherwise available at law or in equity, shall not constitute a waiver of any kind.
If, in a proceeding that involves claims arising under or related to these terms, an arbitrator or court of competent jurisdiction rules that any provision of these Terms is invalid or unenforceable, then that provision will be severed and replaced by a substitute term that is enforceable and that most closely effectuates the stricken term’s intent, and the remainder of these Terms shall remain valid and enforceable as though the severed provision had never been included.
The Site is controlled and operated from within the United States. Without limiting these terms in any other respect, Bivo makes no representation that the Site, Contents, or Services are appropriate or available for use in other locations. Accessing or using this Site from any territory where such use is illegal is prohibited. Those who choose to access the Site from outside the United States are responsible for compliance with applicable laws.
Bivo is committed to protecting your online privacy. We can be reached via e-mail at thirsty@drinkbivo.com.
Bivo reserves the right to amend this Privacy Policy at any time. Please check back frequently in order to see changes. Your use of the Site constitutes your acceptance of this Privacy Policy, as it may be amended from time to time. If you are under thirteen years old, are not competent to enter this agreement, or if you disagree with, do not understand, or object to any of the terms contained in this Privacy Policy, you must immediately discontinue your use of this Site.
1. Collection of Personal Information from Site Users.
(a) Bivo and/or its third-party service providers may collect and/or track the following types of information from visitors to the Site, including personally identifiable information: (1) the home server domain names, e-mail addresses, type of computer, and type of Web browser of visitors to the Site; (2) the e-mail addresses of visitors that communicate with Bivo or the Site via e-mail, (3) information knowingly provided by the visitor in online forms, registration forms and surveys, (including name, address, e-mail and other personal profile data); (4) aggregate and user-specific information regarding page views.
(b) Bivo may collect additional personally identifiable information from visitors who create an account or make a purchase(s) through the site, including: (1) name; (2) shipping and billing addresses; (3) phone number; (4) e-mail address; (5) credit card number; (6) country of residence; (7) age; and (8) gender. This information may be used for billing purposes, to fulfill your order(s), to contact or communicate with you regarding your purchase through or use of the Site, and for Bivo’s internal marketing purposes.
(c) Bivo may place Internet “cookies” on visitors’ hard drives. Internet cookies save data about individual visitors, such as the visitor’s name, password, username, screen preferences, the pages of a site viewed by the visitor, and the advertisements viewed or clicked by the visitor. When the visitor revisits the Site, Bivo may recognize the visitor by the Internet cookie and customize the visitor’s experience accordingly. Visitors may decline Internet cookies, if any, by using the appropriate feature of their Web client software, if available; however, this may impair certain features of the Site.
2. Disclosure of Personal Data Collected.
Bivo may disclose personally identifiable information about you to Third Parties as follows:
(a) To Bivo’s agents and advisors (such as our accountants or attorneys). We only disclose the personal information necessary for them to provide their services to you or to us, and only under strict confidentiality restrictions.
(b) As Bivo believes necessary to: (1) comply with law (including court and government orders, and civil subpoenas); (2) enforce or apply Bivo’s Terms and Conditions and other agreements; or (3) protect the rights, property, or safety of Bivo, our users, or others.
(c) If you partake (or we reasonably suspect that you are partaking) in any illegal or potentially illegal activity. We may disclose personal information even without a subpoena, warrant, or other court order, to the extent we feel is necessary to inform and cooperate with law enforcement agencies or other appropriate authorities.
(d) In aggregated form, i.e., information about multiple users collectively without identifying any individual user, such as the total number of visitors to a particular section in a given week.
(e) As necessary to fulfill you purchase order(s).
(f) In any manner not stated above for which you give Bivo or its agents express consent.
3. Third Party Sites.
The Site may contain links to other websites. Bivo is not responsible for the privacy policies or the content of these other websites. We encourage you to review the privacy policy statements of those sites.
4. Preserving the Privacy of Children.
Bivo does not intentionally collect personally identifiable information from children under the age of thirteen. In fact, children under 13 are not authorized to use the Site. We are not responsible for monitoring the age of Site users. However, if Bivo becomes aware that we have inadvertently collected personally identifiable information from a person who is under the age of thirteen, we will remove that child’s personally identifiable information from our files.
5. Opt-Out Right.
Visitors to the Site may opt-out of having their personal information collected by Bivo or used by Bivo for secondary purposes, by contacting Bivo via email or via postal mail or telephone at the address and phone number on the Site and requesting that their personal information not be collected.
6. Governing Law.
This Privacy Policy and the privacy practices of Bivo are subject exclusively to the laws of the State of Oregon within the United States of America. Bivo makes no representation that this Privacy Policy and such practices comply with the laws of any other country. Visitors who use the Site and reside outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. If you reside outside of the United States, by using the Site, you consent to the transfer and use of your information outside your country.
7. Disclaimer.
We cannot guarantee that your Personal Information will never be compromised. No transmission of data over the Internet or any wireless network can be guaranteed to be 100% secure. Further, while we employ reasonable measures to protect your Personal Information, we cannot guarantee or warrant that unauthorized third parties will not defeat those measures or use non-public Personal Information for improper purposes. Nevertheless, we value your business and have adopted this Privacy Policy, and endeavor to respect your privacy and to keep your Personal Information confidential.
8. Severability.
The provisions of this Privacy Policy are independent of each other, and the invalidity or unenforceability of any term, clause, or provision hereof shall not affect the validity or enforceability of any other term, clause, or provision, and such invalid or unenforceable term, clause, or provision shall be deemed to be severed from this Privacy Policy and replaced with a valid and enforceable substitute term that most closely effects the severed term’s original intent.
9. Incorporation of Terms and Conditions.
The terms of this Privacy Policy supplement the Terms and Conditions set forth above, which are also incorporated in full herein. Any claims arising from or related to an alleged violation of this Privacy Policy by Bivo shall be subject to the notice, limitation of liability, dispute resolution (including mandatory arbitration), indemnity, forum selection, and choice of law provisions set forth in the Terms and Conditions, all of which are specifically incorporated herein.
