TERMS & CONDITIONS
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
- AMENDMENTS AND CHANGES
- PRIVACY STATEMENT
- COPYRIGHTS AND TRADEMARKS
The images and other materials on the Site belong to or are licensed to PopYum. The materials are protected by United States and foreign copyright laws. “PopYum” and other marks and logos are trademarks protected by United States and foreign trademark laws. You agree not to use any of PopYum’s trademarks without our prior written consent. Additionally, you agree not to use our trademarks, or copy the look and feel of the Site or its design, without our prior written consent. You further agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site, without receiving our prior written permission. If you use the images, materials or trademarks on the Site in a way that is not allowed by this Agreement, you are violating the Agreement and may also be violating copyright, trademark, and other laws. In that case, we automatically revoke your permission to use the Site. Title to the materials remains with us or with the authors of the materials contained on the Site. All rights not expressly granted are reserved.
- LIMITED LICENSE
Subject to your compliance with the terms and conditions of this Agreement, PopYum grants you a non-exclusive, non-sublicensable, revocable as stated in this Agreement, non-transferable license to use the Site. Neither the Site, nor any portion of the PopYum’s products, may be reproduced, duplicated, copied, modified, sold, resold, distributed or otherwise exploited for any commercial purpose without the express written consent of PopYum. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of PopYum or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, your rights under this section will immediately terminate.
To improve PopYum services offered, you may be requested to create an account through the Site (an “Account”). You agree that you shall not create an Account or use the Site if you (i) if you have previously been removed by PopYum or banned from using the PopYum Site, (ii) already have an Account with PopYum, (iii) are located in a country embargoed by the United States or (iv) are on the U.S. Treasury Department’s list of Specially Designated Nationals.
5.2. ACCOUNT SECURITY
You are entirely responsible for maintaining the confidentiality of your Account username and password. You agree to notify PopYum immediately if you believe that your Account username and/or password have been compromised.
5.3. ACCOUNT SUSPENSION
PopYum reserves the right to permanently suspend or terminate your Account and your access to the Site or seek appropriate injunctive or monetary relief if it suspects that you have violated any part of the Agreement.
- LINKS TO OTHER WEBSITES
The Site may contain links to websites operated by other parties. PopYum provides these links to other websites as a convenience, and use of those sites is at your own risk. The linked sites are not under the control of PopYum, and PopYum is not responsible for the content available on the other sites. Such links do not imply PopYum’s endorsement of information or material on any other site and PopYum disclaims all liability with regard to your access to and use of such linked websites.
- GIFT MESSAGE
In the event you order a gift message (written or video) to be delivered with your purchase, you agree that PopYum is not responsible in any manner for the content of your message or the receipt or use of that message by the recipient or others. You agree not to include any defamatory, obscene, illegal or offensive content in your gift messages or violate the privacy or intellectual property rights of others. PopYum will not be liable for any claims relating to or arising from such gift message or, in the case of video gift messages, use or attempted use of the third party video service, including without limitation any claims relating to invasion of privacy or security breach.
- FEES AND PAYMENTS
You acknowledge and agree that all information you provide with regards to a purchase, including, without limitation, credit card, PayPal, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice, to (i) discontinue or limit the available quantity of any product or aspect of the Site, (ii) honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; and (iii) refuse to allow any user to purchase a product or deliver any product to a user. When you purchase products through the Site, you (a) agree to pay the price for such products set forth in the Site, all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”) and (b) authorize PopYum to charge your credit card or other payment method for the Full Purchase Amount. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable.
Payment can be made by credit card, debit card, or through PayPal. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor (including Authorize.net) are solely your responsibility.
PopYum may provide product discounts related to any number of promotions. These promotions may be altered by information published on our Site, and if any information is conflicting, the terms most beneficial to PopYum shall prevail and take effect. PopYum may refuse to provide such discounts for any reason including, but not limited to, fraud, mistake on the part of our publication of information, actual or expected financial hardship, sale of all or part of our business, or any other reason at PopYum’s sole discretion. Discounts, Promotions, and Store Credits of any kind may not be combined unless at the sole discretion of PopYum.
8.3. CHANGES TO PRODUCTS AND PRICING
PopYum may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any products sold through the Site. The inclusion of any products through the Site at a particular time does not imply or warrant that these products will be available at any other time. PopYum reserves the right to change prices for products displayed on the Site, or the Site, at any time, and to correct pricing errors that may inadvertently occur. All such changes shall be effective immediately upon posting of such new product prices to the Site.
8.4. ORDER ACCEPTANCE/CONFIRMATION
Once we receive your order, we’ll provide you with an email order confirmation. Your receipt of an order confirmation, however, does not signify PopYum’s acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. PopYum reserves the right at any time after receiving your order to accept or decline your order for any reason. If PopYum cancels an order after you have already been billed, then PopYum will refund the billed amount.
The Site is operated by PopYum in the United States. Those who choose to access the Site from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws.
- DISCLAIMER OF WARRANTIES
THE SITE, THE PRODUCTS OFFERED FOR SALE ON IT, AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED ON AN “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE SITE MAY INCLUDE INACCURACIES, MISTAKES, OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
POPYUM DISCLAIMS ANY AND ALL LIABILITY OF ANY KIND FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION. BY ACCESSING THE SITE, YOU AGREE THAT POPYUM SHALL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO OR USE OF ANY OF YOUR PERSONALLY IDENTIFIABLE INFORMATION.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
- LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, POPYUM, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE, EVEN IF POPYUM AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING PAYPAL OR THE CREDIT CARD COMPANY OR BANK THAT YOU USE TO FUND PAYPAL, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OF OUR COMPANY OR A THIRD PARTY (SUCH AS OUR SHIPPER), INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY, OR WHICH DELAY OR PREVENT THE DELIVERY OF OUR GOODS TO YOU.
WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF POPYUM OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR PARTNERS DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of PopYum and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, hold harmless and defend PopYum and its affiliates, officers, directors, employees, agents, network service providers, business partners and licensors at your expense, against any and all third-party claims, actions, proceedings, and suits and all related liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other dispute resolution expenses) incurred by PopYum arising out of or relating to your (a) violation or breach of any term of this Agreement or any policy or guidelines referenced herein, including any unauthorized disclosure of personal or confidential information or (b) use or misuse of the Site.
- DISPUTE RESOLUTION AND GOVERNING LAW
This Agreement shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. Except as provided in Section 13 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Site shall be subject to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, and you agree to submit to the personal jurisdiction and venue of such courts. You are responsible for compliance with all local laws if and to the extent local laws are applicable.
- BINDING ARBITRATION
(a) Arbitration Procedures. You and PopYum agree that, except as provided in Section (d) below, all disputes, controversies and claims related to this Agreement (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this Agreement. In the event of a conflict between the terms set forth in this Binding Arbitration Section and the JAMS Rules, the terms in this Binding Arbitration Section will control and prevail.
Except as otherwise set forth in Section (d) below, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this Agreement, (i) you and PopYum may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND POPYUM WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
(b) Location. The arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
(c) Limitations. You and PopYum agree that any arbitration shall be limited to the Claim between PopYum and you individually. YOU AND POPYUM AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
(d) Exceptions to Arbitration. You and PopYum agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or PopYum’ intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
(e) Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
(f) Severability. You and PopYum agree that if any portion this Section is found illegal or unenforceable (except any portion of Section (d)), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section (d) is found to be illegal or unenforceable, then neither you nor PopYum will elect to arbitrate any Claim falling within that portion of Section (d) found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and PopYum agree to submit to the personal jurisdiction of that court.
- TERM AND TERMINATION
This Agreement is effective until terminated. PopYum may terminate this Agreement with or without notice for any reason, or for no reason. You may terminate this agreement by discontinuing your use of the Site and notifying PopYum in writing.GENERAL
greement Revisions: This Agreement may only be revised in writing by PopYum, or published by PopYum on the Site.
Force Majeure: PopYum shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of PopYum, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond PopYum’s control such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor, or materials.
No Partnership: You agree that no joint venture, partnership, employment, or agency relationship exists between you and PopYum as a result of this Agreement or your use of the Site.
Assignment: PopYum may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without PopYum’s prior written consent, and any unauthorized assignment by you shall be null and void.
Severability: If any part of this Agreement is determined to be void, invalid or unenforceable, then that portion shall be severed, and the remainder of the Agreement shall be given full force and effect.
Attorneys’ Fees: In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver: Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Equitable Remedies: You hereby agree that PopYum would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement: This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site.
- NOTICE TO CALIFORNIA USERS AND RESIDENTS
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding PopYum or the Site, please send an email to firstname.lastname@example.org.
California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by telephone at (916) 445-1254 or (800) 952-5210 FREE, or by postal mail at:
California Department of Consumer Affairs
1625 North Market Blvd.
Sacramento, CA 95834
- ACKNOWLEDGEMENT AND AGREEMENT
Last Updated: June, 2017