Terms & Conditions

TERMS OF USE

1) Agreement to Terms. By clicking on “I AGREE” as displayed at the FGS Website(s) during log-in, registration and/or purchase of goods and services, and/or by accessing the FGS Website(s), the User confirms that he, she or it has read, understands, “opts in” and agrees to be bound by all of the terms and conditions set forth in the TOU, which shall constitute a binding contract between the User and FGS.  To the greatest extent permitted by applicable law, clicking on “I AGREE” shall be deemed to be the electronic signature of the User. Whether or not the foregoing is a valid electronic signature, however, the User acknowledges and agrees that his, her or its agreement to be bound by the TOU is a material condition on which FGS is relying in granting access to the FGS Website(s), and the User shall be estopped from denying the existence and enforceability of the contract created between FGS and the User as described here.  The User’s right to access the FGS Website(s) is conditioned on the User’s agreement to be bound by the TOU.  If the User does not wish to be bound by the TOU, the User must exit the FGS Website(s) immediately.

2) The FGS Website(s). The FGS Website(s), as the term is used in the TOU, includes but is not limited to https://www.donfranciscos.com.

3) Responsibility for Access to the FGS Website(s). The User is solely and strictly responsible for ensuring that his, her or its account information (including but not limited to his, her or its user name and password), equipment, facilities and premises are secure and accessible only to individuals who are authorized by the User to access the FGS Website(s).  The User is strictly liable and responsible for all activity and conduct by individuals who access the FGS Website(s) by means of the foregoing, and the User’s indemnity obligations as set forth in Section 13 below shall apply to any such activity and conduct.  For that reason, the User is cautioned and encouraged to install, maintain and supervise appropriate security restrictions to control access to the FGS Website(s).

4) Assurances by the User to FGS. Each User represents, warrants, acknowledges and agrees as follows:

     (a) User Is an Adult. The User is 18 years of age or older and is authorized and empowered to enter into and perform his or her obligations under the TOU. 

     (b) No Copying, Sharing or Posting.  The contents of the FGS Website(s) are owned and controlled by FGS, and/or are used by FGS with the permission of third parties, and the User shall not copy, share, post or otherwise use the contents of the FGS Website(s) for any purpose without the prior written consent of FGS.

     (c) Prohibited Conduct.  The User shall not access or use the FGS Website(s) for any purpose except those specifically authorized by FGS.  The User, whether alone and/or in conjunction with others, shall not engage in any activity or conduct that results, whether directly or indirectly, in the disruption or interruption of the FGS Website(s); the interference with access and/or use of the FGS Website(s) by other users; the addition, deletion and/or modification of the FGS Website(s); the collection, recording, storage, and/or use of personal data about other users of the FGS Website(s); the breach, or attempt to breach, the security and/or authentication features of the FGS Website(s); the modification, reverse engineering, decompilation, decoding, disassembly or otherwise accessing of the source code used by FGS in connection with the FGS Website(s); the linking to the FGS Website(s) in any manner that is false or misleading to the user; the use of the FGS Website(s) to send unsolicited communications, whether personal or commercial in nature; the use of the FGS Website(s)’ domain name(s) as a pseudonymous return email address; and/or the registration or use of any domain name that contains or is confusingly similar to the FGS Website(s) domain name(s).  Without limiting the foregoing, and by way of example only, the User may not introduce any viruses, Trojan horses, spyware, or other software of any kind whatsoever, or engage in “flooding,” “spamming,” “spoofing,” “mail bombing,” “crashing,”  “framing,” “deep-linking,” or the forgery of any information that states or suggests a false affiliation or origin of emails and other electronic matter.

     (d) No Endorsements or Guarantees by FGS. The User acknowledges and agrees that FGS does not endorse or guarantee any of the third-party content that may be available through the FGS Website(s), and/or any of the Users who may access the FGS Website(s), and/or any third-party advertising or links that may be displayed at the FGS Website(s), and that FGS shall have no responsibility or liability for such matter or for such content and/or such persons.

5) Permission Granted to User. Conditioned on the User’s compliance with the TOU, FGS grants permission the User to access and use the FGS Website(s) as set forth in the TOU, which incorporate by reference various additional terms and conditions posted at the Website(s).  The permission granted to the User is personal, revocable, non-exclusive, non-transferable and non-sublicensable shall remain in effect unless and until revoked by FGS and/or as set forth in Section 9 below.  Subject to the right of the User to access and use the FGS Website(s), and excluding content licensed to FGS by third parties for use at the FGS Website(s), FGS reserves ownership of copyright, trademark and all other intellectual property rights in and to the FGS Website(s) and their contents, and its other products and services (collectively, the “FGS Materials”).

6) Making and Storage of Copies. Except as otherwise provided by applicable law, FGS reserves the right (but does not undertake the duty) to make and keep copies of information, content and other matter submitted by Users and third parties for archival and research purposes and to disclose such copies to third parties in compliance with its Privacy Policy (see below).  Grounds for disclosure include, but are not limited to, (i) compliance with requests from courts, government agencies and private parties acting pursuant to legal process, including discovery in the course of litigation, (ii) use by FGS in connection with the enforcement of its rights under the TOU and/or in defense of claims related to the information, content or other matter submitted by Users and third parties;  and/or (iii) protection of the rights, property or personal safety of FGS, the Users, and the public.

7) Third-Party Links and Advertisements. The FGS Website(s) may contain third-party advertising and links to third-party sites. Unless expressly stated by FGS at the FGS Website(s), FGS does not investigate, evaluate, endorse, sponsor, or guarantee any such third-party advertising and/or links and/or the products and services available through such advertising and/or links, and Users who access or use such advertising, links and/or products and services do so at their own risk. The User is responsible for determining and complying with any terms of use that may be applicable to third-party sites.  The User expressly releases FGS from any responsibility or liability for any such third-party advertising, links and/or products and services. 

8) Changes in the TOU. FGS reserves the right to amend and modify the TOU in its sole and absolute discretion from time to time.  The User is invited to monitor the TOU as posted at the FGS Website(s) to determine the current terms and conditions of the TOU as they may be changed from time to time.  FGS will use its reasonable best efforts to notify Users if and when the TOU has been changed and to secure the User’s consent to such changes by clicking on “I AGREE.”  By accessing any the FGS Website(s) after any such notification, and by clicking on “I AGREE” at any time after any such notification, the User ratifies, approves and agrees to be bound by any such changes. If the User does not agree to be bound by the current TOU, the User must exit the FGS Website(s) and cease all use of their content, resources and facilities.  The TOU was last revised on October 30, 2019. 

9) Termination. FGS shall have the right, at any time and in its sole and absolute discretion, with or without cause, to terminate the TOU, the User’s access to the FGS Website(s), and the provision of services to the User prior to the expiration of the term described above.  Grounds for termination for cause include but are not limited to (i) any breach or default by the User under the TOU, and/or (ii) as otherwise provided in the TOU. Upon expiration or termination, the User shall no longer have the right to access and/or use the FGS Website(s), the FGS Materials, and/or the other products and services of FGS.

10) Modification, Suspension or Cessation of Services. FGS reserves the right to modify, suspend, and/or cease the operation of the FGS Website(s) and/or the provision of services at any time, without notice and in its sole and absolute discretion, and no such decision by FGS shall be deemed to be a breach or default of the TOU.

11) Reservation of Rights. FGS reserves all rights under copyright, trademark and other intellectual property rights in and to the FGS Materials and the other contents (including the selection, arrangement and coordination of contents and the “look and feel”) of the FGS Website(s), its advertising, publicity, and marketing materials in any and all media know known or hereafter devised, and the logos, trademarks, trade dress, formats and other features of its various products and services as published, promoted and otherwise exploited by FGS (collectively, “FGS Marks”), excluding only such items of intellectual property that may be owned by third parties and are used by FGS under license from the rights-holders or pursuant to the Fair Use Doctrine.  The User expressly acknowledges and agrees that the permission granted to Users in the TOU shall not convey any of the foregoing rights to the User.

12) Take-Down Notices under the DMCA. FGS will receive and evaluate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”).  Written notices of claimed copyright infringement must be in strict compliance with all terms and conditions of the DMCA and must be submitted according to the procedures set forth in the DMCA to the following Designated Agent for FGS:

Internet Service Provider: Shopify.

Hosting Company Name: Shopify.

Name of Agent Designated to Receive Notification of Claimed Infringement on behalf of FGS: Jonathan Kirsch, Esq.

Full Address of Designated Agent to Which Notification to FGS Should Be Sent: Law Offices of Jonathan Kirsch, 1880 Century Park East, Suite 515, Los Angeles, CA 90067

Telephone Number of Designated Agent:  (310) 785-1200 

Facsimile Number of Designated Agent:  (310) 286-9573 

Email Address of Designated Agent: jk@jonathankirsch.com

13) Indemnity. The User shall indemnify, defend and hold harmless FGS, its shareholders, directors, officers, partners, joint venturers, principals, subsidiaries and affiliates, and their respective shareholders, officers, directors, employees, partners, associates, affiliates, joint venturers, agents, representatives, vendors, contractors and licensors, from any and all claims, debts, demands, suits, actions, proceedings and/or prosecutions (“Claims”) based on allegations which, if true, would constitute a breach by the User and/or the User’s agents, representatives, employees, contractors, licensees, or affiliates, of any term of the TOU, and any and all liabilities, losses, damages, expenses (including attorneys’ fees and costs) and damages in consequence thereof.  The User shall give prompt notice in writing to FGS of any Claims. No compromise or settlement of any Claims shall be made or entered into without the prior written approval of FGS.

14) Limitations on Liability of FGS. The User acknowledges and agrees that he, she or it is accessing the FGS Website(s) at his, her or its own risk. The FGS Website(s), including but not limited to all of their content, features and functions, the other products and services of FGS, and/or third-party content, links and advertisements accessible at or through the FGS Website(s), are made available to the User without warranties, representations or indemnities of any kind whatsoever.   FGS makes no representations, warranties or indemnities regarding the completeness, accuracy, currency, suitability, functionality, merchantability, security, suitability for use, accuracy, or effectiveness of the foregoing by Users and shall not be liable for any use in violation of the terms and conditions of the TOU or otherwise. FGS further makes no representations, warranties or indemnities regarding the availability, operation or functionality of the FGS Website(s) and/or the facilities by which the FGS Website(s) are accessed and hosted, and shall not be liable for service interruptions, corruption of data, damage to equipment, and/or malfunctions of any kind. FGS, ON BEHALF OF ITSELF AND ITS DIRECTORS, OFFICERS, PARTNERS, JOINT VENTURERS, PRINCIPALS, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, ASSOCIATES, AFFILIATES, JOINT VENTURERS, AGENTS, REPRESENTATIVES, VENDORS, CONTRACTORS AND LICENSORS, SPECIFICALLY DISCLAIM ANY LIABILITY (WHETHER BASED IN COPYRIGHT, TRADEMARK, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO THE FGS WEBSITE(S) and/or THE PRODUCTS AND SERVICES OF FGS (EVEN IF FGS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).

15) Applicable Law. The TOU shall be interpreted, construed and governed in all respects by the laws of the United States of America and the State of California. Venue for any dispute arising under the TOU shall be in any court of competent jurisdiction in the County of Los Angeles, State of California, and the User hereby expressly submits and consents to such jurisdiction.

16) Entire Agreement. The TOU (which includes and incorporates the Terms of Use set forth above and the Privacy Policy set forth below), as it may be changed from time to time by FGS and including any matter incorporated by reference, represents the complete and entire agreement of the User and FGS, and replaces and supersedes any and all prior or contemporaneous communications, understandings, arrangements, and/or agreements between them, regarding the subject matter hereof.

17) Modification and Waiver.  Except as otherwise provided in Section 10 above, the TOU may not be modified or altered, and no term or condition may be waived, except by a written instrument signed by an authorized representative of FGS.  No waiver of any term or condition of the TOU, or of any breach of the TOU or any portion thereof, shall be deemed a waiver of any other term, condition or breach of the TOU or any portion thereof.

18) Severability. If any term or provision of the TOU is found to be unenforceable for any reason, the TOU shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.

19) Force Majeure. FGS will not be responsible for any delay or failure in performance resulting from any cause beyond its control.

 20) Relationship of the Parties. FGS and the User acknowledge and agree that they are independently contracting parties dealing at arm’s length with each in connection with the licensing of intellectual property rights and the provision of services. No partnership, joint venture, joint authorship, employment, fiduciary, agency or other relationship is created between them.  The User shall not purport to act on behalf of FGS in any manner or for any purpose and shall not purport to incur any debt or liability on behalf of FGS.

21) Notices. Any written notice or delivery under any of the provisions of these Terms of Use shall be deemed to have been properly made by mailing via traceable mail as follows:

If to the User: At the address given by the User at the time of log-in and/or registration and/or the purchase of goods or services from FGS.

If to FGS: F. Gaviña & Sons, Inc., Attn.: Chief Privacy Officer, 2700 Fruitland Ave., Vernon, CA 90058, or to such new and different address as may be posted from time to time in the TOU as posted at the FGS Website(s).

With a copy to: Law Offices of Jonathan Kirsch, Attn.: Jonathan Kirsch, 1880 Century Park East, Suite 515, Los Angeles, CA 90067, or such new and different address as may be posted from time to time in the TOU as posted at the Website(s).

22) Headings. Headings and footers are for convenience only and are not to be deemed part of the TOU.

23) Binding on Successors. The TOU shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors and/or assigns of the parties, except that no sublicense or other transfer of rights by the User is permitted.  For avoidance of doubt, the User expressly acknowledges and agrees that FGS is fully authorized to assign, sublicense and/or otherwise convey and transfer the TOU and/or any of its rights under the TOU at any time, in its sole and absolute discretion, and without compensation of any kind to the User. In the event that FGS is acquired by, merges with, and/or sells its assets to a third party, becomes aligned with another company or business entity, such third party shall be entitled to use the User’s personal information as set forth in the TOU and Privacy Policy.