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Pop-A-Licious Terms and Conditions
Pop-A-Licious Terms of Use
This website (the “Site” or “Online Service”) is operated by or on behalf of Pop-A-Licious (“Pop-A-Licious,” “we,” “us,” or other similar pronouns). These Terms of Use (this “TOU”) and our Privacy Policy apply to your use of the Online Service. By using the Online Service, you acknowledge that you understand and agree to this TOU and that you understand and consent to the terms of our Privacy Policy.
THIS TOU, TOGETHER WITH ANY OTHER TERMS AND CONDITIONS OR POLICIES THAT THIS TOU REFERS TO, FORMS A BINDING AGREEMENT BETWEEN YOU AND POP-A-LICIOUS. PLEASE READ THIS TOU CAREFULLY BEFORE ACCESSING, DOWNLOADING OR USING ANY OF THE ONLINE SERVICES. IF YOU DO NOT AGREE TO THIS TOU, YOU ARE NOT AUTHORIZED OR LICENSED TO USE ANY ONLINE SERVICE AND MUST IMMEDIATELY CEASE USING THE ONLINE SERVICES.
We reserve the right, in our sole discretion and without notice, to amend this TOU at any time by posting an updated version of this TOU on this page, so you should periodically review this page for any updates. Such changes will be effective when posted, and the date on which this TOU was most recently updated is stated at the end of this TOU. To the fullest extent permitted by applicable law, each updated version of the TOU will apply to all past and current users of the Online Services and will replace any prior version of the TOU. By continuing to use the Online Services after we post any updated version of the TOU, you accept and agree to this TOU as amended.
PLEASE NOTE: THIS TOU CONTAINS A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN SECTION 22 BELOW THAT AFFECTS YOUR RIGHTS UNDER THIS TOU AND HOW DISPUTES BETWEEN YOU AND POP-A-LICIOUS WILL BE RESOLVED. YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS, AS FURTHER DESCRIBED IN SECTION 22 BELOW.
1. ADDITIONAL TERMS AND CONDITIONS
Certain features, content, products, services or software that you access, use, purchase or download using the Online Services may be subject to additional terms and conditions that are specifically referenced in this TOU or are presented to you at the time that you access, use, purchase or download them, and such terms and conditions may also be updated at any time. For example:
- Our Return Policy, which applies to products you order from us through the Online Services, can be viewed here,
- Terms and conditions regarding certain of our promotions can be viewed here, and
- Terms and conditions regarding order shipping can be viewed here.
In addition, if Pop-A-Licious conducts sweepstakes or other promotions, your participation or entering into of such sweepstakes or promotions may be subject to your agreement to additional terms and conditions presented to you at the applicable time. Some areas of the Online Services may be provided by our third-party partners and may be subject to separate terms and conditions of use, which are posted within those areas to the extent applicable and shall apply to you and your use of those areas.
2. PRIVACY POLICY
By accessing the Online Services, you acknowledge that you understand and consent to the terms of our Privacy Policy.
3. OUR TRADEMARKS AND OTHER PROPRIETARY RIGHTS
Except for your Submitted Materials (as defined in Section 7), we and our licensors own, solely and exclusively, all rights, title and interest (including, but not limited to, copyrights) in and to the Online Services, all the content (including, but not limited to, all audio, photographs, images, illustrations, renderings, drawings, webcasts, RSS feeds, podcasts, other services, graphics, logos, games, widgets, gadgets, applets, other distributable applications, other visuals, video, copy and software), code, data and other materials on the Online Services, the look and feel, design and organization of the Online Services, and the compilation and organization of the foregoing (collectively, the “Content”), including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Online Services does not transfer, assign or grant to you any right, title or interest in or to any Content or any other part of the Online Services, nor does it grant you any license to use or display any of the foregoing except as expressly permitted in Section 4.
Without limiting the foregoing, the trademarks, logos, service marks and trade names displayed on the Online Services, including, but not limited to, “Pop-A-Licious” (collectively the “Trademarks”), are the registered and unregistered trademarks of Pop-A-Licious, its affiliates or third parties and may not be used unless Pop-A-Licious, or its affiliate or the third party, as applicable, that owns such Trademark, expressly authorizes such use in writing. Nothing contained on the Online Services should be construed as granting, expressly, by implication, estoppel or otherwise any license or right to use any Trademark displayed on the Online Services or included in the Content, without our prior written permission or that of the applicable third-party rights holder.
4. LIMITED LICENSE
Subject to this TOU and your compliance with this TOU, we grant to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access, view, use and display the Online Services on your computer or other device from within the United States of America for your personal, non-commercial use only. No part of the Online Services or Content (or any of our products or services advertised or sold on or through the Online Services) may be copied, reproduced, republished, exploited, downloaded, uploaded, posted, transmitted, modified, derived, exploited, distributed or used in any manner whatsoever, without our prior written consent or that of the applicable third-party rights owner.
5. RULES OF CONDUCT AND LIMITATIONS ON USE
You agree to comply with the following rules of conduct and limitations when you use the Online Services:
- Do not remove any copyright, trademark or other proprietary notice from any Content.
- Do not “harvest”, “scrape”, “mine” or otherwise collect information from the Online Services using an automated software tool or manually on a mass basis. This includes, for example, information about other users of the Online Services and information about the offerings, products, services and promotions available on the Online Services.
- Do not use automated means to access the Online Services, and do not gain or attempt to gain unauthorized access to the Online Services or to any account or computer system connected to the Online Services. This prohibition does not apply to search engines accessing the Site solely for web indexing purposes.
- Do not solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes.
- Do not use or attempt to use another’s account without authorization.
- Do not “stream catch” (download, store or transmit copies of streamed content).
- Do not obtain, or attempt to obtain, access to areas of the Online Services or our systems that are not intended for access by you.
- Do not “flood” the Online Services with requests or otherwise overburden, disrupt or harm the Online Services or its systems.
- Do not circumvent or reverse engineer the Online Services or their systems.
- Do not develop or use any third-party applications that interact with the Online Services, other than web browsers for the purposes of viewing the Site for your personal use in accordance with this TOU.
- Do not “frame” our Online Services or otherwise make it look like you have a relationship to us or that we have endorsed you for any purpose.
- Do not restrict or inhibit any other user or users from using and enjoying the Online Services.
- If you post or upload something to the Online Services, such as a review, a comment or other content, do not post or upload anything that:
- infringes any third party’s intellectual property right (such as copyright),
- is defamatory (e.g., something that is negative and untrue about another person or entity),
- divulges another person’s or entity’s confidential or private information or trade secret,
- is fraudulent, unlawful, threatening, harassing, abusive, obscene or discriminatory,
- encourages criminal conduct,
- advertises or solicits business for products or services other than those that are offered by Pop-A-Licious on the Online Services, or
- contains any virus, malware, spyware or other harmful content or code.
Although Pop-A-Licious has no obligation to monitor any user conduct on the Online Services, Pop-A-Licious reserves the right and has absolute discretion to monitor any user conduct on the Online Services at any time and for any reason without notice.
6. ONLINE SERVICES REGISTRATION, ACCOUNT CREATION AND LOG-IN
You must be 18 years of age or older to use the Online Service and to register and create an account. To access certain features or areas of the Online Service, you may be required to provide personal and/or demographic information as part of a registration or log-in process. You agree to provide true, accurate, current, and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up to date (including, but not limited to, your contact information, so that we can reliably contact you). The information you submit must describe you only (you may not impersonate another person or entity), and you may not sell, share, or otherwise transfer your account or your account information.
You are responsible for all activity occurring using your account or when the Online Services are accessed through your account, whether authorized by you or not, and for the confidentiality and security of your account log-in credentials. Therefore, if you create an account, be sure to protect the confidentiality of your account username and password. We will not be liable for any loss or damage arising from your failure to protect your username, password or account information.
7. SUBMITTED MATERIALS
Unless specifically requested by us, we neither solicit nor wish to receive any confidential, secret or proprietary information or other material from you. Any information, proposals, requests, creative works, pictures, photographs, documents, letters, demos, ideas, know-how, suggestions, concepts, methods, systems, designs, drawings, renderings, plans, techniques, comments, criticisms, reports, reviews, ratings, feedback or other information, content or materials that you submit, post, upload, distribute, store, send or transmit to, on or through the Online Services in any manner (collectively, “Submitted Materials”) will be deemed not to be confidential, secret or proprietary and may be used by us in any manner, without restriction.
By submitting, posting, uploading, distributing, storing, sending or transmitting Submitted Materials to, on or through any Online Service, you: (i) represent and warrant that your Submitted Materials comply with this TOU (including, without limitation, Section 4), (ii) represent and warrant that either (a) your Submitted Materials are original to you and no other party has any rights thereto, or (b) that you have all licenses, rights, consents and permissions necessary to use such Submitted Materials, to submit them to the Online Services for our use, and to validly grant to us (and our affiliates) the license set forth in the following clause (iii), and that any “moral rights” in the Submitted Materials have been waived; and (iii) hereby grant to us (and our affiliates) a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub-licensable (through multiple tiers) right and license to use, copy, reproduce, modify, store, adapt, publish, translate, create derivative works from, distribute, perform, display, make, exploit, sell, export and incorporate into other works, products or services (including, but not limited to, the Online Services), in whole or in part, such Submitted Materials, in any form, media, or technology now known or later developed, for any purpose. We are not responsible for maintaining or storing, and may delete or destroy, any Submitted Material that you provide. You agree to keep copies of all necessary supporting documentation and to make such records available to us upon our request.
8. RESPONSIBILITY FOR PUBLIC POSTINGS AND CONTENT
Responsibility for what is posted in public areas of the Online Services lies with each user. You alone are responsible for the reviews or other Submitted Materials you post or otherwise make available in public areas of the Online Services. You alone are responsible for assessing the credibility of other user postings. We do not control the review or other material that you or others may post or otherwise make available in such areas, and you understand that we have no obligation to monitor any such material or to edit or delete it. However, we reserve the right to do so. We are not a publisher of user reviews or other posts, and we are not responsible for their accuracy or legality.
You also understand and agree that any action or inaction by us or any of our directors, officers, stockholders, employees, consultants, agents or representatives (collectively, “Our Representatives”) to prevent, restrict, redress or regulate content, or to implement other enforcement measures against any content, conduct or potential TOU violation is undertaken voluntarily and not out of any obligation, and you expressly agree that (i) we and Our Representatives shall have the right to take (or not take) such actions or inactions in our or their sole discretion, and (ii) neither we nor any of Our Representatives shall be liable to you or anyone else for any action or inaction to prevent, restrict, redress, or regulate content, or to implement other enforcement measures against any content, conduct or potential violation of this TOU.
Although Our Representatives may moderate content and conduct TOU compliance on the Online Services at our discretion, Our Representatives have no authority to make binding commitments, promises or representations to anyone that they or anyone else on our behalf will “take care” of any alleged problem or complaint, or that they or anyone else on our behalf will otherwise stop, cure or prevent any problem, content, conduct or purported TOU violation from occurring or recurring. Accordingly, you further agree that any representation (written or verbal) by any of Our Representatives (or by anyone purportedly acting on our behalf) that we would or would not prevent, restrict, redress or regulate content (including, but not limited to, screen, block, moderate, review, remove, terminate, delete, edit or otherwise stop, cure or exclude any content), or would implement other enforcement measures against any content, conduct or potential or purported TOU violation is superseded by this provision and is nonbinding and unenforceable. Specifically, you agree that we, Our Representatives and anyone else authorized to act on our behalf shall in no circumstance be liable as a result of any representation that we, Our Representative or anyone else acting on our behalf would or would not restrict or redress any content, conduct or potential or purported TOU violation. This Section 8 may not be waived or released by Pop-A-Licious except by a written agreement, dated and signed by our Chief Executive Officer or Chief Legal Officer and dated and signed by the individual or entity to whom the waiver or release is granted.
9. USER INTERACTIONS
Pop-A-Licious is not responsible or liable for the conduct of, or your interactions with, other users of the Online Services (whether online or offline), nor is Pop-A-Licious responsible or liable for any associated loss, damage, injury or harm. Pop-A-Licious recommends exercising caution before contacting or meeting anyone (online or offline) that is unfamiliar to you.
10. ELECTRONIC COMMUNICATIONS
When you visit the Online Services or send e-mails to us, you are communicating with us electronically. By doing so, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
11. NOTICES OF CLAIMED COPYRIGHT INFRINGEMENT (DMCA TAKEDOWN NOTICES)
We respect the intellectual property rights of others, and we require that users of the Online Services do the same. We also maintain a policy that provides for the termination in appropriate circumstances of the Online Service use privileges of users who are repeat infringers of intellectual property rights. If you believe that any work you own the copyright to is being used on the Online Services in a way that constitutes copyright infringement, please send the following information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2) (the “DMCA”), named below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that you are requesting to be removed or access to which you are requesting to be disabled, and information reasonably sufficient to enable us to locate such material;
- Your postal address, telephone number and email address;
- A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law and therefore constitutes copyright infringement; and
- A statement by you, under penalty of perjury, that all information in your notification is accurate and that you are the owner of the exclusive right that allegedly has been infringed or are authorized to act on behalf of such owner.
Our Copyright Agent for notices of claims of copyright infringement pursuant to the DMCA can be reached as follows:
Registered Copyright Agent
Pop-A-Licious
2013 Angel Falls Dr.
Henderson, NV 89074
Email: customerservice@pop-a-licious.com
12. PRICING AND AVAILABILITY
All prices for products available through the Online Services are shown in U.S. dollars (except where otherwise noted) and exclude taxes and shipping and handling charges, which are additional. All items are subject to availability and we reserve the right, to the fullest extent permitted by applicable law, to impose quantity limits on any order, to reject all or part of an order and to discontinue products or services without notice, even if you have already placed your order. To the fullest extent permitted by applicable law, all prices are subject to change without notice and you agree that taxes may be adjusted from the amount shown on the billing screens as necessary to be accurate. Several factors may cause this, such as variances between processor programs and changes in tax rates. Additionally, many products displayed on the Online Services are also available in Pop-A-Licious retail stores while supplies last and many products available in Pop-A-Licious retail stores are displayed on the Online Services, but you should not assume that what you see on the Online Services can always be seen or available in our stores or that what you see in our stores can always be seen or available on the Online Services. Prices displayed on the Online Services may vary from those in the store or from store-advertised prices.
13. ERRORS
We do not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free. In the event of an error, whether on the Online Services, in an order confirmation, in processing an order, delivering a product or service or otherwise, we reserve the right, to the fullest extent permissible by applicable law, to correct such error and revise your order accordingly, if necessary (including, but not limited to, to charge the correct price), or to cancel the order and refund any amount charged. To the fullest extent permissible by applicable law, your sole and exclusive remedy in the event of any such error is to cancel your order and obtain a refund.
14. SERVICE UPDATES
We may from time to time update the Online Service, including by providing upgrades, bug fixes, error corrections, or new features. Updates may also modify or remove features and functionality. We have no obligation to provide any particular update or to continue to provide or enable any particular feature or functionality.
15. MODIFICATION OR DISCONTINUATION OF ONLINE SERVICE
Pop-A-Licious reserves the right to modify or discontinue, temporarily or permanently, the Online Services or any features or portions thereof at any time, without prior notice. You agree that Pop-A-Licious will not be liable for any modification, suspension or discontinuance of the Online Services or any part thereof.
16. SUSPENSION OR TERMINATION OF ACCESS
We reserve the right to deny access to, and to suspend or terminate your access to, the Online Services, or to any features or portions thereof, and to remove and discard any Submitted Materials that you have submitted to the Online Services, at any time and for any reason, including, without limitation, for any violation by you of this TOU. In addition, we have a policy of terminating the Online Services usage privileges of users who are repeat infringers of intellectual property rights. In the event that we suspend or terminate your access to and/or use of the Online Services, you will continue to be bound by the version of this TOU that was in effect as of the date of your suspension or termination.
17. LINKS TO THE SITE
We permit links to the Site so long as: (i) the Site opens in a new browser window which displays the full version of a web page of the Site (not merely one of its frames, and not an “in-line” link to a particular image or object on the Site), (ii) the link to the Site does not state or imply any sponsorship or endorsement by us of any product, service, content or material; and (iii) the Site is not display framed within, surrounded by or obfuscated by other content. We reserve the right to revoke your right to link to the Site upon notice. If you receive such a notice from us, you agree to immediately discontinue your link to the Site. You will not link to any Online Service other than in accordance with this Section 17.
18. LINKS TO THIRD PARTY SITES
The Online Services may contain links to websites controlled by parties other than Pop-A-Licious, including, but not limited to, those of the franchisees or licensees of Pop-A-Licious (“Operators”), and social media platforms, such as Facebook, Twitter, Snapchat or Instagram (all links to third-party websites and social media platforms are collectively referred to herein as “Third Party Sites”). Pop-A-Licious may work with certain partners and affiliates whose sites are linked with the Online Services. Pop-A-Licious is not responsible for and does not endorse or accept any responsibility for the availability, contents, products, services or use of any Third-Party Site, any website accessed from a Third-Party Site or any changes or updates to such Third-Party Sites. Pop-A-Licious makes no guarantees about the content or quality of the products or services provided by such Third-Party Sites. Pop-A-Licious provides links to Third Party Sites only as a convenience, and the inclusion of any link does not imply endorsement by Pop-A-Licious of any Third-Party Site. You acknowledge that you bear all risks associated with access to and use of a Third-Party Site and agree that Pop-A-Licious is not responsible for any loss or damage of any sort you may incur from dealing with a third party. You should contact the site administrator for the applicable Third-Party Site if you have any concerns regarding such links or the content located on any such Third-Party Site. Third Party Sites and your use of them and any content available on or through them may be subject to separate terms and conditions between you and the provider(s) of such Third-Party Site. You should read and understand those terms and conditions before commencing such use.
19. INDEMNIFICATION
You agree to defend, indemnify and hold harmless Pop-A-Licious and its affiliates, and Pop-A-Licious’s and its affiliates’ respective officers, directors, owners, stockholders, partners, members, employees, independent contractors, agents, service providers and consultants, from and against any and all claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of or related to (i) your use of the Online Services, (ii) any Submitted Materials, (iii) your violation of this TOU, (iv) your violation of any rights of another, or (v) your conduct in connection with the Online Services. This indemnification, defense and hold harmless obligation will survive this TOU and the termination of your use of the Online Services.
20. JURISDICTIONAL ISSUES
We control and operate the Online Services from our facilities in the United States of America, and unless otherwise specified, the materials displayed on the Online Services are presented solely for the purpose of promoting products and services available in the United States of America, its territories, possessions, and protectorates. We do not represent that the Online Services or Content, products or services available on the Online Services are appropriate or available for use in or from other geographic locations. If you choose to access the Online Services from other locations, you are responsible for compliance with local laws, if and to the extent local laws are applicable.
21. GOVERNING LAW; NO WAIVER; SEVERABILITY
This TOU, and the relationship between you and us, will be governed by the laws of the State of New York, without giving effect to any principles of conflicts of law. Pop-A-Licious reserves the right to pursue any and all legal and equitable remedies against anyone violating this TOU. Our failure to exercise or enforce any right or provision of this TOU will not constitute a waiver of such right or provision. If any provision of this TOU is found by a court of competent jurisdiction to be invalid, unlawful, void or otherwise unenforceable, you and we nevertheless agree that the court should endeavor to give effect to intentions as reflected in the provision and reform such provision such that it is enforceable to the maximum extent permissible under applicable law, and the other provisions of this TOU will remain in full force and effect.
22. BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER
A. Disputes. The term “Dispute” (i) means any dispute, claim, or controversy between you and us or any of our affiliates regarding the Online Services or any product or service thereon, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Section 22 (with the exception of the enforceability of the Class Action Waiver clause below), and (ii) is to be given the broadest possible meaning that will be enforced. If you have a Dispute with us or any affiliate of ours or any of our or their officers, directors, owners, stockholders, partners, members, employees or agents that cannot be resolved through negotiation within the time frame described in the “Notice of Dispute” clause below, other than those matters listed in the Exclusions from Arbitration clause, you and the entity that you have a Dispute with agree to seek resolution of the Dispute only through arbitration of that Dispute in accordance with the terms of this Section 22, and not litigate any Dispute in court. Arbitration means that the Dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.
B. Exclusions from Arbitration. YOU AND WE AND OUR AFFILIATES AGREE THAT ANY CLAIM FILED BY YOU OR BY US OR OUR AFFILIATE IN SMALL CLAIMS COURT IS NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 22.
C. Right to Opt Out of Binding Arbitration and Class Action Waiver within 30 Days. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION AND CLASS ACTION WAIVER IN THIS SECTION 22, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE MAILED TO Pop-A-Licious, 2013 Angel Falls Dr., Henderson, NV 89074 AND MUST INCLUDE: (I) YOUR NAME, (II) YOUR ADDRESS, (III) YOUR ACCOUNT NUMBER, IF YOU HAVE ONE, AND (IV) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US OR OUR AFFILIATES THROUGH ARBITRATION.
D. Notice of Dispute. If you have a dispute with us or any of our affiliates, you must send written notice to Pop-A-Licious, 2013 Angel Falls Dr., Henderson, NV 89074, to give us or our affiliate with which you have a dispute the opportunity to resolve the dispute.
E. Informally Through Negotiation. You agree to negotiate resolution of the Dispute in good faith for no less than 60 days after you provide notice of the Dispute, unless the Dispute is resolved within 60 days. If we or our affiliate with which you have a Dispute does not resolve your Dispute within 60 days from receipt of notice of the Dispute, you, we or our affiliate with which you have a Dispute may pursue your claim in arbitration pursuant to the terms in this Section 22.
F. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL LEGAL ACTION, UNLESS BOTH YOU AND THE ENTITY WITH WHICH YOU HAVE A DISPUTE SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.
G. Initiation of Arbitration Proceeding/Selection of Arbitrator. If you or the entity you have a Dispute with elect to resolve your Dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com. The terms of this Section 22 govern in the event they conflict with the rules of the arbitration organization selected by the parties.
H. Arbitration Procedures. Because the Online Services or products or services provided to you by Pop-A-Licious concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all related Disputes. However, applicable federal or state law may also apply to the substance of any Disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to and negotiated in good faith with the entity you had a Dispute with as described above, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to the entity you have a Dispute with or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
I. Location of Arbitration. You or the entity you have a Dispute with may initiate arbitration in either New York County, New York or the county in which you reside. In the event that you select the county of your residence, the entity you have a Dispute with may transfer the arbitration to New York County, New York in the event that it agrees to pay any additional fees or costs you incur as a result of the change in location as determined by the arbitrator.
J. Severability. If any clause within this Section 22 is found to be illegal or unenforceable, that clause will be severed from this Section 22, and the remainder of this Section will be given full force and effect.
K. Continuation. This Section 22 shall survive any termination of this TOU or your use of the Online Services.
23. JURISDICTION
ANY DISPUTE NOT SUBJECT TO ARBITRATION AND NOT INITIATED IN SMALL CLAIMS COURT WILL BE LITIGATED BY EITHER PARTY ONLY IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IF SUCH COURT WOULD NOT HAVE JURISDICTION OVER THE MATTER, THEN ONLY IN A FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK. EACH PARTY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THESE COURTS AND AGREES NOT TO COMMENCE ANY LEGAL ACTION UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS TOU IN ANY OTHER COURT OR FORUM. EACH PARTY WAIVES ANY OBJECTION TO THE LAYING OF THE VENUE OF ANY LEGAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS TOU IN THE FEDERAL OR STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, AND AGREES NOT TO PLEAD OR CLAIM IN SUCH COURTS THAT ANY SUCH ACTION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
24. DISCLAIMER OF WARRANTIES
THE ONLINE SERVICES AND ALL CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NON-INFRINGEMENT). THIS MEANS, FOR EXAMPLE, THAT WE MAKE NO PROMISES THAT:
- THE ONLINE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME,
- THE ONLINE SERVICES WILL MEET ANY PARTICULAR REQUIREMENTS OR PROVIDE ANY PARTICULAR RESULTS,
- THE INFORMATION ON THE ONLINE SERVICES WILL BE ACCURATE OR UP TO DATE,
- THE ONLINE SERVICES OR THE INFORMATION TRANSMITTED TO OR FROM IT OR STORED ON IT WILL BE SECURE FROM UNAUTHORIZED ACCESS,
- INFORMATION AND MATERIALS THAT YOU STORE IN YOUR ACCOUNT OR ON THE ONLINE SERVICES WILL REMAIN RETRIEVABLE AND UNCORRUPTED (UNLESS WE PROMISE THIS IN A SEPARATE AGREEMENT WITH YOU), OR
- THE ONLINE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED.
WITHOUT LIMITING THE FOREGOING, POP-A-LICIOUS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THE AVAILABILITY, SECURITY, RELIABILITY, TIMELINESS AND PERFORMANCE OF ANY ONLINE SERVICES AND ANY CONTENT, FEATURES, INFORMATION, PRODUCTS OR SERVICES ON OR AVAILABLE THROUGH THE ONLINE SERVICES OR THROUGH ANY LINKS ON THE ONLINE SERVICES.
IF YOU REQUEST OR OBTAIN A PRODUCT, ONLINE SERVICE OR OTHER OFFERING FROM A THIRD PARTY AFTER FOLLOWING AN ADVERTISEMENT OR LINK ON THE ONLINE SERVICES, THE TERMS AND CONDITIONS FOR YOUR TRANSACTION ARE BETWEEN YOU AND THE THIRD PARTY WITH WHOM YOU ENTERED INTO THE TRANSACTION. WE ARE NOT RESPONSIBLE FOR SUCH THIRD-PARTY PRODUCTS, ONLINE SERVICES OR OTHER OFFERINGS OR FOR DISPUTES BETWEEN YOU AND THEIR PROVIDERS.
YOU AGREE THAT USE OF THE ONLINE SERVICES IS AT YOUR OWN RISK. ALTHOUGH WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE ONLINE SERVICES IS ACCURATE AND UP TO DATE, WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION (INCLUDING, BUT NOT LIMITED TO, PRICING) AT ANY TIME. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, TIMELINESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE ONLINE SERVICES, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE ONLINE SERVICES. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE ONLINE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. WE HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE (I) SOLUTIONS OR ONLINE SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS OR SUPPORT DOCUMENTATION, (II) BY OUR CUSTOMER SERVICE AND SUPPORT AGENTS, OR (III) OTHERWISE ON THE ONLINE SERVICES OR IN CORRESPONDENCE WITH US OR OUR AGENTS. WE ARE NOT RESPONSIBLE FOR ANY CONTENT OR MATERIALS POSTED TO THE ONLINE SERVICES BY USERS, NOR FOR DISPUTES BETWEEN USERS, OR BETWEEN USERS AND THIRD PARTIES.
THESE DISCLAIMERS APPLY TO US AND OUR AFFILIATED AND RELATED COMPANIES AS WELL AS THIRD PARTIES THAT ARE INVOLVED IN THE ADMINISTRATION, CREATION, PRODUCTION OR DISTRIBUTION OF THE ONLINE SERVICES, AND ANY OF THEIR EMPLOYEES AND AGENTS.
25. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW:
- NEITHER POP-A-LICIOUS NOR ITS AFFILIATES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES OR LOSSES OF ANY KIND WHATSOEVER ARISING OUT OF YOUR ACCESS TO, OR USE OF, THE ONLINE SERVICES, INCLUDING BUT NOT LIMITED TO ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT OR COMPUTER VIRUS, OR THE DELETION, FAILURE TO STORE, MISDELIVERY OR UNAVAILABILITY OF ANY INFORMATION, MATERIAL, PRODUCTS, SERVICES, APPLICATIONS OR FEATURES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- IF AND TO THE EXTENT POP-A-LICIOUS’S AND ITS AFFILIATES’ MAXIMUM LIABILITY CANNOT, UNDER APPLICABLE LAW, BE ENTIRELY DISCLAIMED PURSUANT TO THE PARAGRAPH IMMEDIATELY ABOVE, POP-A-LICIOUS’S AND ITS AFFILIATES’ AGGREGATE MAXIMUM LIABILITY TO YOU FOR ANY AND ALL CLAIMS, INCLUDING, BUT NOT LIMITED TO, THOSE BASED ON NEGLIGENCE, SHALL IN NO EVENT EXCEED THE AMOUNT YOU PAID TO POP-A-LICIOUS FOR ANY PRODUCTS WHICH YOU PURCHASED AND PAID FOR THROUGH THE ONLINE SERVICES.
- BY USING THE ONLINE SERVICES, YOU AGREE TO RELEASE AND HOLD HARMLESS POP-A-LICIOUS, ITS AFFILIATES, OFFICERS, OWNERS, AFFILIATES, DIRECTORS AND EMPLOYEES FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES, COSTS AND EXPENSES OF ANY KIND WHATSOEVER RELATING IN ANY WAY TO USE OF THE ONLINE SERVICES OR ANY CONTENT ACCESSED OR DOWNLOADED FROM THE ONLINE SERVICES.
Certain jurisdictions may not allow the exclusion of implied warranties or certain forms of damages, so some of the above exclusions may not apply to you.
26. LIMITATION ON TIME TO FILE CLAIMS
YOU AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE ONLINE SERVICES OR THE USE THEREOF (INCLUDING, WITHOUT LIMITATION, ANY CONTENT, PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE ONLINE SERVICES), OR THIS TOU, MUST BE FILED BY YOU WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUED OR ELSE IT WILL BE PERMANENTLY BARRED AND YOU WILL BE DEEMED TO HAVE WAIVED ANY RIGHTS YOU MAY HAVE TO SUCH CLAIM OR CAUSE OF ACTION.
27. NOTICE TO CALIFORNIA CONSUMERS
Under California Civil Code Section 1789.3, California users of the Online Services receive the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
28. THIRD-PARTY BENEFICIARIES
This TOU is not intended to benefit any third party and does not create any third-party beneficiaries, except Pop-A-Licious’s affiliates, which are third-party beneficiaries of this TOU. Accordingly, this TOU may only be invoked or enforced by you, us, or Pop-A-Licious’s affiliates.
29. ENTIRE AGREEMENT
This TOU and any additional terms and conditions that are referenced herein constitute the entire agreement between us and you with respect to the Online Services. This TOU is personal to you and you may not assign it to anyone.
