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HERUNIVERSE.COM / CUSTOMER SERVICE / TERMS OF USE
Last Updated: April 5, 2024
Welcome! You have arrived at a website, mobile Internet site, or mobile application operated by HU Merchandising LLC (“Her Universe”, “we,” “our,” or “us”). Each website, mobile Internet site, or mobile application shall be referenced as a “Site” or collectively, the “Sites”, however it is accessed and/or used, whether via personal computers, mobile devices or otherwise..
Please read these Terms of Use (“Terms”) carefully as they govern your use of the Sites and your purchase of products from the Sites. By accessing or using the Sites, you agree to follow and be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT USE THE SITES.
PLEASE NOTE THAT THESE TERMS REQUIRE THAT DISPUTES BE RESOLVED ONLY BY FINAL AND BINDING INDIVIDUAL ARBITRATION (AND NOT BY COURT LITIGATION) IN THE COUNTY OF THE BILLING ADDRESS ASSOCIATED WITH YOUR ACCOUNT, OR THE COUNTY WHERE YOU RESIDE IF NO ACCOUNT EXISTS. THIS MEANS THAT YOU WAIVE ANY RIGHT TO A JURY TRIAL, AND WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN CLASS ACTIONS AGAINST US. IN ARBITRATION, THERE IS NO JURY, LESS DISCOVERY, AND LIMITED APPELLATE REVIEW AS COMPARED TO COURT LITIGATION. Please review the provision Arbitration Agreement and Class Action Waiver in Section 18 of these Terms for complete details. PLEASE REVIEW CAREFULLY.
In some instances, both these Terms and a separate terms of service setting forth additional terms and conditions (such as our Her Universe Rewards Loyalty program Terms and Conditions) may apply to a service or product offered via the Sites (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
Contents
1. Account Registration2. Placing an Order
3. Promotions
4. Ownership of Site Materials
5. Your License to Use Materials and Digital Media Purchases on Our Sites
6. Information You Submit; Privacy Policy
7. User Content Rules
8. User Interactions and Disputes
9. Copyright Infringement/DMCA
10. Third Party Links and Content
11. Linking Policy
12. Disclaimer of Warranties
13. Limited Liability
14. Indemnification
15. Termination and Modifications
16. Location of Sites and Territorial Restrictions
17. Governing Law
18. Dispute Resolution; Arbitration Agreement; Class Action Waiver
19. Binding Agreement; Updates to Terms
20. Miscellaneous
21. Questions
1. Account Registration
Certain areas of the Sites may require registration or may otherwise ask you to provide information in order to access certain features, such as to purchase products, to write product reviews, to participate in a loyalty rewards program, to receive electronic newsletters or mobile alerts, to participate in social networking activities, or to access our User Forums. The decision to provide this information is purely optional; however, if you elect not to provide such information, you may not be able to participate in certain features of the Sites. When you provide information to the Sites, you agree to provide only true, accurate, current and complete information. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Sites (or any portion thereof).
Furthermore, you are entirely responsible for any and all activities that occur under your Account. You agree to immediately notify our customer service department of any unauthorized use of your Account or any other breach of security of which you become aware.
2. Placing an Order
(a) Products and Services Offered on the Sites. If you wish to purchase any product or service made available through the Site, you may be asked to provide certain information relevant to your transaction including, without limitation, your credit or payment card number, the expiration date of your credit or payment card, your billing address, and your shipping information. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT OR PAYMENT CARDS OR OTHER PAYMENT METHODS UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the transactions initiated by you or on your behalf. You understand that we will not be liable in the event that others acting with or without your permission use your credit or payment card to make purchases on the Sites. Certain products that you purchase and/or download on or through the Sites may be subject to Additional Terms presented to you at the time of such purchase or download.
(b) Quantities; Resellers. We reserve the right, at our sole discretion, to prohibit sales to dealers or resellers. If we suspect that you are placing an order with the intent to resell items, we may cancel your order, suspend, or terminate your account, and pursue any available legal remedies. For purposes of these Terms, “reselling” will be defined as purchasing any products from us for the purpose of engaging in a commercial resale of the same products to a third party.
(c) Prices; Discounts. All prices listed on the Sites are subject to change. In the event a product or service is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right, prior to the acceptance of your order pursuant to our Order Acceptance Policy described below, to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit or payment card has already been charged for the purchase and we cancel your order, we shall issue a credit to your credit or payment card account in the amount of the charge.
The nondiscounted prices displayed on our Sites are based on our subjective opinion of the value of the product, taking into account a number of factors such as item cost, profit margin, available inventory, anticipated demand, competition and prices of comparable products. The nondiscounted price is our offer price. This means that we offered the product or comparable products at the nondiscounted price. We may not have sold the product at the nondiscounted price in the recent past. Savings are calculated based on our nondiscounted price, not actual sales.
(d) Colors; Availability. Please keep in mind that while we might offer a variety of merchandise, digital music and media, and other products and services for sale on the Sites, we cannot guarantee availability at a particular time; and certain products or services available in our stores might not be available on the Sites, and vice versa. We reserve the right to change our merchandise, digital music and media content and other products and service offerings, both in-store and online, at any time. We also reserve the right to change contents, features and offerings, and adjust accessibility of the Sites from time to time in our discretion.
(e) Order Acceptance Policy. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order to accept or decline your order for any reason. We reserve the right at any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order. Your order is not accepted until we send you shipping information for the order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a portion of your order, or if we provide you less than the quantity you ordered, your sole and exclusive remedy is either that (a) we will issue a credit to your credit or payment card account in the amount charged for the cancelled portion or the quantity not provided (if your credit or payment card has already been charged for the order) or (b) we will not charge your credit or payment card for the cancelled portion of the order or the quantity not provided.
(f) Payment Terms. For each product or service that you order on the Sites, you agree to pay the price applicable for the product or service (including any sales taxes, surcharges and any delivery fees for the delivery service you select) as of the time you submitted the order. Her Universe will automatically bill your credit card or other form of payment submitted as part of the order process for such price. If payment is not received by your credit or payment card issuer or its agents, you agree to pay all amounts due upon demand by us.
(g) Sales Taxes. Sales taxes, or other taxes, duties, customs, import/export charges, or similar governmental charges are not included in the price of the products. We shall automatically charge and withhold the applicable sales tax for orders to be delivered to addresses within the United States in accordance with our order policy in effect at the time of purchase. Each customer shall be solely responsible for all sales taxes, or other taxes, duties, customs, import/export charges, or similar governmental charges (except for taxes on Her Universe’s net income), on orders shipped outside the United States.
(h) Exchange/Return Policy. All purchase transactions, excluding purchases for custom apparel and digital music and media content offered for permanent download (“Digital Media Purchases”), are subject to Her Universe’s exchange/return policy in effect at the time of purchase. For reference, the current form of our exchange/return policy is available at https://www.heruniverse.com/customer-service/returns-exchanges/. We may modify our return policies from time to time so you should check these each time prior to making a purchase. Please pay close attention to detail, spelling and color to ensure correct approval before printing custom apparel. Her Universe will not refund or replace any item due to incorrect spelling, color or design. On occasion, technical and other problems may delay or prevent delivery of Digital Media Purchases. Your exclusive and sole remedy in respect of Digital Media Purchases that is not delivered within a reasonable period of time will be either replacement of such Digital Media Purchase, or a refund of the purchase price paid for such Digital Media Purchase, as determined by us in our sole and absolute discretion.
3. Promotions
The Sites may contain or offer sweepstakes or other promotions, which may be governed by a separate set of rules that describe the sweepstakes or promotion and may have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read those rules to determine whether or not your participation, registration or entry will be valid and to determine the sponsor’s requirements of you in connection with the applicable sweepstakes or promotion.
4. Ownership of Site Materials
(a) Materials. The Sites (including past, present and future versions) and all materials that are included in or are otherwise a part of the Sites, including, without limitation: graphics; layout; text; data; content; instructions; images; audio; videos; digital media offered by streaming (but specifically excluding Digital Media Purchases); designs; advertising copy; trademarks; logos; domain names; trade names; service marks and trade identities; any and all copyrightable material (including source and object code); the “look and feel” of the Sites; the compilation, assembly and arrangement of the materials of the Sites; and all other materials related to the Sites (collectively, the “Materials”) are owned, controlled or licensed by Her Universe, its subsidiaries or affiliates and are protected from unauthorized use, copying and dissemination by copyright, trademark, patent, publicity and other laws, rules, regulations and international treaties. Except as expressly set forth in these Terms or otherwise expressly granted to you in writing by Her Universe, no rights (either by implication, estoppel or otherwise) are granted to you. Any and all rights to use any Materials not expressly granted to you under these Terms are hereby reserved for Her Universe and/or its members, subsidiaries, affiliates or its licensors. Nothing contained in these Terms will affect, impair, or limit in any way Her Universe’s rights to exploit fully any or all of the Materials. You acknowledge and agree that you will not, directly or indirectly, contest, challenge, aid or abet in contesting or challenging the validity or ownership of the Materials, or take any action whatsoever in derogation of Her Universe’s rights therein, or in breach of, any provisions contained in these Terms.
(b) Copyrights/Trademarks. The entire contents of the Sites (including the Materials) are copyrighted under the United States copyright laws and/or similar laws of other jurisdictions. Without limitation, Her Universe owns a copyright in the selection, coordination, arrangement and enhancement of the Materials on the Sites. Third-party content providers own the copyright in content that is original to them. Trademarks and service marks, such as the Hot Topic, BoxLunch, and Her Universe names and logos, and the Sites’ URLs are the service and trademarks of Her Universe or its affiliated companies. Without Her Universe’s prior written permission, you agree not to display or use, in any manner any such marks and all goodwill associated with any use by you thereof will inure exclusively to Her Universe. The Materials may not be copied, reproduced, downloaded or distributed in any way, in whole or in part, without the express prior written permission of Her Universe, unless and except as is expressly provided in these Terms. Any unauthorized use of the Materials is prohibited. You agree to abide by any and all additional trademark and copyright notices, information or restrictions contained in any part of the Sites.
(c) Notice: Certain functionality provided via this Site(s) may be covered by U.S. Patent 5,930,474.
5. Your License to Use Materials and Digital Media Purchases on Our Sites
(a) License for Materials. Subject to your strict compliance with these Terms, Her Universe grants you a limited, personal, non-exclusive, non-commercial, revocable, non-assignable and non-transferable license to download, display, view, use and/or play a single copy of the Materials (excluding source and object code), on any single computer (or other device you use to access the Sites) for your personal, non-commercial use only, provided that: (i) you keep intact all trademark, copyright and other proprietary notices contained in the original Materials or any authorized copy you may make of the Materials; (ii) you do not use the Materials in a manner that suggests an association with any of our products, services or brands; (iii) you make no modifications to the Materials; (iv) you do not allow, aid or abet any third party (whether or not for your benefit): (a) to copy or adapt the source or object code of the Sites’ software, HTML, JavaScript or other programming code; or (b) reverse engineer, decompile, reverse assemble, modify or attempt to discover any source code that the Sites create to generate their web pages or any software or other products or processes accessible through the Sites; and (v) you do not insert any code or product to manipulate the Materials in any way that affects any user’s experience of the Sites.
(b) Prohibited Activities. You also agree that you will not: (i) use any robot, spider, rover, scraper, or any other data mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy or distribute the Materials (except as may be a result of standard Internet browser or search engine); (ii) fail to follow the instructions provided on the Sites in a “robots.txt” file or similar mechanism (to the extent that you provide standard search engine services to the public); nor will you (iii) modify, frame, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party web site, or otherwise use the Materials in any way for any commercial purpose.
(c) Streaming Video Content. We may, in our discretion, provide to you code (the “Embed Code”) allowing you the ability to stream certain digital music and media content (the “Streaming Content”) from our Sites to a personal web page or social networking profile page (“Personal Page”) on which you embed such Embed Code. Should we provide such Embed Code, it will be identified as code intended for such purpose, and Her Universe grants you a limited, non-exclusive, non-transferable, revocable license to embed such Embed Code solely upon websites owned or controlled by you, solely for purposes of streaming digital music and media content provided from the Sites in order to display the Streaming Content. For any Streaming Content that we make available on a Site, we grant you a revocable permission, subject to the restrictions in these Terms, and any applicable Additional Terms, to include the Embed Code as provided by us (without editing) for inclusion only on your Personal Page and only on a site that: (i) permits you to post the Streaming Content there; and (ii) does not have terms of use or other conditions that purport to give that site operator any interest or right in or to our Embed Code or Streaming Content other than to obtain a limited, terminable right to host the Streaming Content and permit its normal operation. You may not frame the Streaming Content nor include any “pre-roll” or “post-roll” video in connection with such Streaming Content. You may not redistribute or assign any right or title in the Embed Code. You may not use the Embed Code for commercial purposes. You agree that you shall not include the Embed Code in such a way to permit the copying, modification, or creation of derivative works of any Streaming Content. You agree not to display the Streaming Content in connection with any material or content that is libelous, defamatory, obscene, pornographic, threatening, invasive of privacy or publicity rights, abusive, illegal or otherwise objectionable, or any content or material that would constitute or encourage a criminal offense, violates the rights of any party, or that would otherwise give rise to liability, or violates any law or obligation of confidentiality. Your use of the Streaming Content may display our trademarks contained in the Steaming Content or Materials made available thereby, but we control the use thereof and all goodwill associated with such use inures exclusively to us. As described below, we make no specific warranties about Streaming Content and we may discontinue providing the services necessary for the Streaming Content to operate at any time for any reason without any liability to you. In addition, we may disable Streaming Content that you include on your Personal Page(s) if you violate these Terms (as determined by us in our sole discretion), or for any or no reason, without any liability to you. You agree that our permission to you to use Streaming Content on your Personal Page does not provide you (or any third party) with any intellectual property rights, including copyrights, in or to the Streaming Content or the Materials made available. You agree not to circumvent (or in any way attempt to circumvent) the security or rights management features in Streaming Content (including any video player) that are designed to prevent users from copying, manipulating or retaining the Streaming Content.
(d) Software and Other Items Available For Download. Any items that we make available for download or use from the Sites and/or our servers, including, without limitation, the Digital Media Purchases (the “Downloadable Items”) are the copyrighted work of Her Universe or its licensors or suppliers. You may not use the Downloadable Items for commercial purposes. Your use of the Downloadable Items may be governed by Additional Terms, which may be included with the Downloadable Items. Please carefully read any Additional Terms to determine the full extent of conditions governing the use of such Downloadable Items. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE DOWNLOADABLE ITEMS TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT APPLICABLE TO SUCH DOWNLOADABLE ITEMS. Note that if you install certain applications that may be available via the Sites, you consent to the download of software to your computer or other device and accept these Terms and any Additional Terms related to such application. The Sites may provide updates to the Downloadable Items for feature, security or other enhancements from time to time. You agree to hold Her Universe harmless in the event of damage to your device used to access the Sites or data that may result from your use of the Downloadable Items.
6. Information You Submit; Privacy Policy
(a) User Content. The Sites may provide you and others with the opportunity to participate in forums, blogs, message boards, product reviews, social networking, and other communication (collectively, “User Forums”) and may provide you with the opportunity, through such features or otherwise, to submit, post, display, transmit, perform, publish, distribute or broadcast content and materials to Her Universe or the Sites, including, without limitation, photographs, writings, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions or personally identifiable information (collectively, “User Content”).
(b) Privacy Policy. Any User Content or other personal information you provide to Her Universe will be subject to our Privacy Policy, which can be found here: https://www.heruniverse.com/customer-service/her-universe-policies/privacy-policy/. Please review the Privacy Policy for more information about how we collect and use your personal information.
(c) Terms Applicable to User Content. You agree that your User Content will be treated as non-confidential and non-proprietary and will not be returned. You represent that either: (i) you own all the rights to the User Content; or (ii) you have all necessary rights, permissions, and licenses to enter these Terms and grant Her Universe the license set forth in Section 6(d) of these Terms. Upon Her Universe’s request, you will furnish Her Universe any documentation, substantiation or releases necessary to verify your compliance with these Terms. You also acknowledge that the Internet may be subject to breaches of security and should be aware that submissions of User Content or other information may not be secure, and you should consider this before submitting any information to Her Universe.
(d) License to Her Universe for User Content. You grant to Her Universe the unrestricted, unconditional, non-exclusive, unlimited, worldwide, irrevocable, perpetual and royalty-free right and license to host, use, copy, distribute, reproduce, disclose, sell, re-sell, sub-license, display, perform, transmit, publish, broadcast, modify, reformat, translate, archive, store, cache or otherwise exploit in any manner whatsoever, all or any portion of your User Content for any purpose whatsoever in all formats; on or through any media, software, or medium now known or hereafter developed; and with any technology or devices now known or hereafter developed and to advertise, market and promote the same. You further agree that Her Universe is free to use any ideas, concepts, know-how or techniques contained in any User Content you send or upload to the Sites or Her Universe, for any purposes whatsoever, including, without limitation, developing, manufacturing and marketing products or services using such User Content, without compensation of any kind. You further perpetually and irrevocably grant Her Universe the unconditional right to use and exploit your name, persona and likeness included in any User Content and in connection with any User Content, without any obligation or compensation to you. You also grant to Her Universe the right to sub-license and authorize others to exercise any of the rights granted to Her Universe under these Terms; and each such third party will be entitled to benefit from the rights and licenses granted to Her Universe under these Terms. You further authorize Her Universe to publish your User Content in a searchable format that may be accessed by users of the Sites and the Internet. Except as prohibited by law, you waive any moral rights you may have in any User Content you submit, even if such User Content is altered or changed in a manner not agreeable to you.
(e) Her Universe’s Obligations Regarding User Content. You agree that Her Universe has no obligation to pre-screen, monitor or enforce your intellectual property rights to your User Content but has the right to protect and enforce its and its licensed rights to your User Content. You further acknowledge and agree that Her Universe will not have any obligation to, but may review, monitor, display, accept or exploit any User Content and Her Universe may, in its sole discretion, delete, edit, distribute, move, block access, re-format, edit, alter, distort, remove or refuse to exploit User Content without notice or liability; provided, however, that Her Universe reserves the right to treat User Content on the Sites, or on certain portions of the Sites, as content stored at the direction of users for which Her Universe will not exercise editorial control except to enforce (i) the rights of third parties and (ii) the content restrictions set forth in the User Content Rules (defined below).
Her Universe is not in any manner responsible for the User Content. Any opinions, advice, statements, or other information contained in User Content made available on the Sites are those of the respective author(s) or distributor(s) and not of Her Universe. We neither endorse nor guarantee the accuracy, completeness, or usefulness of any such User Content.
You acknowledge that by providing you with the ability to view User Content on the Sites, Her Universe is not undertaking any obligation or liability relating to any such User Content, including without limitation any liability arising under the laws relating to copyrights, trademarks, defamation, privacy or obscenity or any other applicable law. User Content posted may not be maintained on the Sites by us for any period of time, we may delete it at our discretion and you have no right to access or control any User Content that you provide. You agree and understand that Her Universe is not obligated to use User Content and that you will not receive any consideration or compensation for your User Content or for any exploitation of it.
(f) Your Obligations Regarding User Content. You agree that you need to evaluate, and bear all risks associated with, the use of any User Content, including, but not limited to, any reliance on the accuracy, completeness, or usefulness of User Content. As Her Universe may not pre-screen User Content, you bear legal responsibility for others’ exposure to any offensive indecent or objectionable content in User Content.
7. User Content Rules
Any User Content you submit, post or upload to our Sites must comply with the following User Content Rules (“User Content Rules”). We reserve the right, in our sole discretion, to monitor and screen all User Content submitted to the Sites and may remove any User Content that, in our sole discretion, violates these User Content Rules or the Terms, or that we otherwise find objectionable. Please follow these User Content Rules if you upload any User Content:
(a) Do Not Submit Content that Is Not Yours. By posting User Content, you are guaranteeing to Her Universe that either you own all rights to the User Content (including without limitation all the rights to any music or lyrics that can be heard in the content), or that you have permission to post the User Content from the owner(s) of all of the rights to the User Content. If you do not own all the rights or do not have permission to post the User Content, this could result in serious consequences for you and for Her Universe, for which Her Universe would hold you responsible.
(b) Do Not Submit Content that Is Objectionable. You should not post User Content that could be interpreted as (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar or in violation of any applicable laws; or (ii) a display of bigotry, discrimination, hatred, intolerance, racism or inciting violence.
(c) Do Not Submit Content that Discloses Private Information of Others. You should not post User Content that discloses private or confidential information of others.
(d) Do Not Submit False or Misleading Content. Any statements made by you in your User Content should be true and accurate to the best of your knowledge and should reflect your honest opinions. You should not make any intentionally misleading, deceptive, untrue, or fraudulent statements about third parties or Her Universe products. You are responsible for checking your facts before you make any claims. Furthermore, you should not impersonate any other users in your User Content.
(e) Do Not Damage the Sites or Anyone’s Computers With Your Content. Your User Content must not contain viruses, Trojan horses, spyware or any other technologies that could impact the operation of the Sites or any computer system. You may not gain unauthorized access to any computer system or nonpublic portion of the Sites or interfere with or disrupt the Sites, servers or networks connected to the Sites.
(f) Do Not Use User Content or Any Other Portion of the Sites for Commercial Purposes. Your User Content should not advertise or promote a third party business. Nor should your User Content be used for any commercial purpose. You may not use your User Content to raise money for anyone, any organization, any business or for a pyramid or other multi-tiered marketing scheme.
8. User Interactions and Disputes
You are solely responsible for your interaction with other users of the Sites, whether online or offline. We are not responsible or liable for the conduct of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others, when you submit or post any personal or other information, and in all other online activities.
9. Copyright Infringement/DMCA
(a) DMCA. You may not use the Sites for any purpose or in any manner that infringes the rights of any third party. Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”), Her Universe has implemented procedures for receiving notifications of claimed infringements and for processing such claims in accordance with the procedures of the DMCA. Her Universe accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
(b) Procedure. If you believe that your work has been copied in a way that constitutes copyright infringement, please submit written notification (“DMCA Notice”) to our Designated Agent listed below and provide the following information: i. Your address, telephone number, and email address; ii. a description of the copyrighted work or works that you claim has been infringed; iii. identification of the allegedly infringing material on our Site, as well information reasonably sufficient to enable us to locate the material on our Site (for example, “My copyrighted work appears on [insert link to webpage that contains the copyrighted work]”). You should also provide screenshots of the allegedly infringing materials when possible; iv. A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law; v. A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner; and vi. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
Please send the DMCA Notice to the designated agent listed below (“Designated Agent”).
If sending the DMCA Notice by mail, please send to: Hot Topic, Inc., ATTN: Legal Department, 18305 E. San Jose Avenue City of Industry, CA 91748.
If sending the DMCA Notice by e-mail, please send to: internetadministrator@heruniverse.com. Please use the subject line: DMCA Takedown Notice.
Once proper infringement notification is received by the Designated Agent, it is Her Universe’s policy to: (a) remove or disable access to the infringing material; and (b) notify the provider of the material or user that it has removed or disabled access to such material.
It is often difficult to determine if your intellectual property rights have been violated. We may request additional information before we remove any allegedly infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove or disable your content along with that of the alleged infringer pending resolution of the matter. Her Universe has a policy of terminating the Accounts of users who we find, in our sole and absolute discretion, to be repeat infringers. Her Universe reserves the right to define the criteria by which it will determine that a user is a “repeat infringer.”
If you believe that a user is a repeat infringer, please follow the instructions above to contact Her Universe’s Designated Agent and provide information sufficient for us to verify that the user has been determined to be in violation of the DMCA repeatedly.
10. Third Party Links and Content
There may be links from the Sites, or communications you receive from the Sites, to third party web sites, or our Sites may include third party content that we do not control, maintain or endorse. Accessing those third party sites requires you to leave the Sites. We do not control those third party sites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third party sites, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH THE SITES, INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. HER UNIVERSE ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND ANY THIRD PARTY SITE THAT YOU VISIT.
11. Linking Policy
Her Universe grants you revocable permission to link to the Sites; provided, however, that your web site, or any third party web sites that link to the Sites: (a) cannot frame or create a browser or border environment around any of the content on the Sites or otherwise mirror any part of the Sites; (b) cannot imply that Her Universe or the Sites are endorsing or sponsoring it or its products, unless Her Universe has given its prior written consent; (c) cannot present false information about Her Universe or its products or services; (d) cannot use any Her Universe trademarks without the prior written permission from Her Universe; (e) cannot contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Her Universe’s sole opinion); and (f) has to be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to the Sites, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, Her Universe reserves the right to prohibit linking to the Sites for any reason, in our sole and absolute discretion, even if the linking complies with the requirements described above.
12. Disclaimer of Warranties
THE SITES, INCLUDING, WITHOUT LIMITATION, THE MATERIALS, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, HER UNIVERSE AND ITS PARENT, SUBSIDIARIES OR AFFILIATES AND EACH OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, MEMBERS, SHAREHOLDERS, AGENTS, VENDORS, AND CONTRACTORS (COLLECTIVELY, THE “HER UNIVERSE PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SITES; (B) THE MATERIALS ON OR PROVIDED THROUGH THE SITES; (C) USER CONTENT; (D) THE DOWNLOADABLE ITEMS AND EMBED CODE; (E) THE FUNCTIONS MADE ACCESSIBLE ON OR THROUGH THE SITES; (F) ANY PRODUCTS, SERVICES OR INSTRUCTIONS OFFERED OR REFERENCED AT THE SITES; AND/OR (G) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TRANSMITTED TO OR FROM HER UNIVERSE OR VIA THE SITES. IN ADDITION, THE HER UNIVERSE PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE HER UNIVERSE PARTIES DO NOT REPRESENT OR WARRANT THAT THE SITES OR THE FUNCTIONS CONTAINED THEREIN WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVER THAT MAKES THE SITES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES OR OTHER MALWARE. THE HER UNIVERSE PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITES IS ACCURATE, COMPLETE, CORRECT, ADEQUATE, USEFUL, TIMELY, RELIABLE OR OTHERWISE. THE HER UNIVERSE PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE HER UNIVERSE PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO THESE TERMS.
BY ACCESSING OR USING THE SITES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES.
13. Limited Liability
UNDER NO CIRCUMSTANCES WILL THE HER UNIVERSE PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (A) THE SITES; (B) THE MATERIALS; (C) USER CONTENT; (D) THE DOWNLOADABLE ITEMS AND EMBED CODE (E) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (F) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE HER UNIVERSE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (G) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (H) ANY ERRORS OR OMISSIONS IN THE SITES’ TECHNICAL OPERATION; OR (I) ANY DAMAGE TO ANY USER’S COMPUTER, HARDWARE, COMPUTER SOFTWARE, WIRELESS DEVICES, CELLULAR PHONE, MODEM OR OTHER EQUIPMENT OR TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE HER UNIVERSE PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED, IN WHOLE OR IN PART, BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SITES). IN NO EVENT WILL THE HER UNIVERSE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU
YOUR ACCESS TO AND USE OF THE SITES IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE SITES OR ANY OF THE MATERIALS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITES OR THE MATERIALS.
WAIVER OF INJUNCTIVE RELIEF. YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF HER UNIVERSE’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE SITES OR ANY OTHER WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE HER UNIVERSE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE OR OTHER MATERIALS OWNED OR CONTROLLED BY THE HER UNIVERSE PARTIES OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
14. Indemnification
You agree to defend (if requested by Her Universe), indemnify and hold harmless the Her Universe Parties from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys’ fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) your User Content; (b) your use of the Sites or activities in connection with the Sites; (c) your breach or anticipatory breach of these Terms; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities; (e) information or material transmitted through your computer or other device used to access the Sites, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Her Universe Parties’ use of your information. You will fully cooperate with the Her Universe Parties in the defense of any claim. Notwithstanding the foregoing, the Her Universe Parties retain the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of action which are brought against them herein under the terms and provisions of this Section. The Her Universe Parties reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of the Her Universe Parties.
15. Termination and Modifications
(a) Termination. Her Universe may, at its sole discretion, suspend or terminate Your Account or your access to the Sites (or any portions thereof) at any time and for any reason, including, without limitation, because Her Universe believes you failed to comply with These Terms, or you have otherwise used your Account or the Sites for fraudulent, illegal, or immoral purposes.
(b) Modifications. Her Universe similarly reserves the right to modify, withdraw, suspend or discontinue, temporarily or permanently, at any time and for any reason, the Sites (or any portions thereof), any Materials available on the Sites, and any activities or features made available through the Sites.
(c) What happens upon Termination? Upon termination of your access to the Site(s) and/or your Account, or upon demand from Her Universe, all rights granted to you under these Terms will cease immediately, and you agree that you will: (i) immediately discontinue use of the Sites, including links to the Sites; and (ii) destroy all Materials obtained from the Sites and all related documentation.
16. Location of Sites and Territorial Restrictions
The information provided on the Sites is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Her Universe to any registration requirement within such jurisdiction or country. Her Universe controls and operates the Sites from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Sites are appropriate for use or access in other locations. Anyone using or accessing the Sites from other locations does so on their own initiative and are responsible for compliance with United States’, and local laws regarding online conduct and acceptable content, if and to the extent such local laws are applicable. We reserve the right to limit the availability of the Sites and/or the provision of any content, program, product, service or other feature described or available thereon to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any such content, program, product, service or other feature that we provide.
17. Governing Law
THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
18. Dispute Resolution; Arbitration Agreement; Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS, COLLECTIVE, OR REPRESENTATIVE CLAIM OR ACTION, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR HER UNIVERSE WOULD HAVE IN COURT, SUCH AS APPELLATE REVIEW, ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
For purposes of this Section 18, “Her Universe” shall include HU Merchandising LLC, Hot Topic, Inc., as well as the subsidiaries, affiliates, agents, officers, directors, employees, predecessors in interest, successors, and assigns of each of the foregoing.
(a) Mandatory Notice of Dispute; Informal Dispute Resolution Process. If you and Her Universe have a Dispute (as defined below), you and Her Universe agree to attempt to resolve the Dispute informally according to the below procedure prior to initiating an arbitration proceeding. The statute of limitations on any applicable claims and any filing fee deadlines will be tolled during this informal dispute resolution process.
Before initiating an arbitration, you and Her Universe each agree to first provide the other with a detailed written notice (“Notice of Dispute”). The Notice of Dispute must include (i) the name, telephone number, mailing address, and email address of the person or entity providing the notice; (ii) a statement of the legal claims asserted and the factual basis for those claims; (iii) a description of the remedy sought; and (iv) a good-faith calculation of the amount of money in dispute, if applicable.
If you provide a Notice of Dispute to Her Universe, the Notice of Dispute must be mailed via first-class mail, FedEx or UPS to: Hot Topic, Inc., ATTN: Legal Department, 18305 E. San Jose Ave., City of Industry, CA 91748. Your Notice of Dispute must include your personal signature. If Her Universe provides you a Notice of Dispute, Her Universe will mail the notice via first-class mail, FedEx, or UPS to the billing address associated with your Account (the “Notice Address”). If Her Universe is unable to reach you at the Notice Address, it may provide you the Notice of Dispute via email at the email address associated with your Account.
If a party receives a Notice of Dispute, it may request a telephone settlement conference. If such a settlement conference is requested, you and a Her Universe representative must personally appear and participate in a telephone settlement conference (if a party is represented by counsel, counsel may also participate in the conference) to discuss the Dispute and potential resolution.
For a period of 60 days from the date of receipt of a complete Notice of Dispute, you and Her Universe agree to make a good faith attempt to resolve the Dispute prior to commencing an arbitration under Section 18(b) of these Terms. You and Her Universe agree not to commence an arbitration proceeding until this 60-day informal dispute resolution period expires, which period may be extended by agreement of the parties. If an agreement cannot be reached within 60 days of receipt of the Notice of Dispute, you or Her Universe may commence an arbitration proceeding, pursuant to the procedure outlined below. Compliance with and completing this informal dispute resolution process is a condition precedent to filing any demand for arbitration. You and Her Universe agree that it is a material breach of these Terms to initiate an arbitration proceeding without first completing this mandatory informal dispute resolution process.
If there is a dispute regarding the sufficiency of a Notice of Dispute or a party’s compliance with this mandatory informal dispute resolution process, such dispute may be decided by a court of competent jurisdiction at either party's election, and any arbitration proceeding shall be stayed pending resolution of the dispute. A court of competent jurisdiction shall have the authority to enforce the informal dispute resolution process as a condition precedent to arbitration and enjoin a party from filing or initiating an arbitration proceeding until such condition has been satisfied. You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief in arbitration.
(b) ARBITRATION AGREEMENT. IF YOU AND WE ARE UNABLE TO RESOLVE ANY DISPUTE THROUGH THE INFORMAL DISPUTE RESOLUTION PROCESS SET FORTH IN SECTION 18(A) OF THESE TERMS, YOU AND WE AGREE THAT ANY CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND HER UNIVERSE, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THE SITES, YOUR USE OR ACCESS THEREOF, THE PRODUCTS, SERVICES, PROMOTIONS, PROGRAMS OR OTHER FEATURES OFFERED ON OR THROUGH THE SITES OR HER UNIVERSE’S STORES, ANY OTHER ASPECT OF YOUR RELATIONSHIP WITH HER UNIVERSE, AND/OR TO THE APPLICATION, SCOPE, OR INTERPRETATION OF THIS AGREEMENT TO ARBITRATE (INDIVIDUALLY A “DISPUTE” AND COLLECTIVELY "DISPUTES"), SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION. THE SOLE EXCEPTIONS TO THIS ARBITRATION REQUIREMENT ARE THAT (I) YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY, AS LONG AS THE MATTER REMAINS IN SUCH COURT AND IS NOT REMOVED OR APPEALED TO A COURT OF GENERAL JURISDICTION AND ADVANCES ONLY ON AN INDIVIDUAL (NON-CLASS, NON-REPRESENTATIVE) BASIS; AND (II) EACH PARTY MAY BRING SUIT IN COURT TO PROSECUTE OR ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY. THE TERM “DISPUTE” SHALL BE INTERPRETED BROADLY TO INCLUDE ANY CLAIMS OR DISPUTES THAT AROSE PRIOR TO THESE TERMS AND ANY CLAIMS OR DISPUTES THAT MAY ARISE AFTER TERMINATION OF THESE TERMS AND OUR RELATIONSHIP WITH YOU.
ALL DISPUTES SHALL BE DETERMINED BY BINDING ARBITRATION (1) ADMINISTERED BY AAA, PURSUANT TO THE AAA RULES APPLICABLE TO THE NATURE OF THE DISPUTE, INCLUDING THE AAA CONSUMER ARBITRATION RULES AND/OR THE AAA MASS ARBITRATION SUPPLEMENTARY RULES, AS APPLICABLE (THE “AAA RULES”), AND AS MODIFIED BY THIS ARBITRATION AGREEMENT; (2) CONDUCTED BY A SINGLE, NEUTRAL ARBITRATOR; AND (3) TAKE PLACE TELEPHONICALLY OR BY VIDEO, UNLESS AN IN-PERSON HEARING IS SPECIFICALLY REQUESTED BY EITHER PARTY. IF AN IN-PERSON HEARING IS REQUESTED, SUCH IN-PERSON HEARING SHALL TAKE PLACE AT A LOCATION THAT IS REASONABLY CONVENIENT TO YOU OR AT ANOTHER MUTUALLY AGREED-UPON LOCATION. YOU AND A HER UNIVERSE REPRESENTATIVE SHALL PERSONALLY APPEAR (WITH COUNSEL IF YOU OR WE ARE REPRESENTED) AT AN INITIAL TELEPHONE OR VIDEO CONFERENCE WITH A CASE MANAGER BEFORE AN ARBITRATOR IS APPOINTED AND AT A HEARING IF ONE IS SCHEDULED BY THE ARBITRATOR.
YOU AND HER UNIVERSE AGREE THAT IT IS A MATERIAL BREACH OF THESE TERMS TO INITIATE OR SEEK TO INITIATE THE ARBITRATION WITH ANY ARBITRATION ORGANIZATION OTHER THAN AAA. DISPUTES MAY BE REFERRED TO ANOTHER ARBITRATION ORGANIZATION ONLY IF YOU AND HER UNIVERSE AGREE IN WRITING, OR TO AN ARBITRATOR APPOINTED PURSUANT TO SECTION 5 OF THE FEDERAL ARBITRATION ACT.
The AAA Rules, fee information, forms and instructions to initiate arbitrations are available at https://www.adr.org/, or by calling AAA at 800-778-7879. To commence an arbitration, a Demand for Arbitration is required to be executed and served on Her Universe. Service of the Demand for Arbitration on Her Universe can be mailed via first-class mail, FedEx or UPS to: Hot Topic, Inc., ATTN: Legal Department, 18305 E. San Jose Ave., City of Industry, CA, 91748. Service of the Demand for Arbitration on you will be sent to your Notice Address.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages), and must follow the terms of these Terms. BY AGREEING TO THESE TERMS, YOU AGREE TO GIVE UP TO THE FULLEST EXTENT PERMITTED BY LAW: (I) YOUR RIGHT TO BRING AND PROSECUTE ANY DISPUTES WITH HER UNIVERSE IN A COURT OF LAW OR BEFORE A JURY, AND (II) YOUR RIGHT TO BRING OR PARTICIPATE IN CLASS OR COLLECTIVE ACTIONS.
Each party shall be responsible for its own attorneys’ fees and costs in arbitration, unless otherwise authorized or required by law or the AAA Rules. A party shall also be entitled to its attorneys’ fees and costs in the event the arbitrator determines that a claim made against it was frivolous or brought for an improper purpose or in bad faith. The arbitrator shall have the same authority as a court to issue sanctions against a party and counsel under Federal Rule of Civil Procedure 11. In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator. Notwithstanding anything to the contrary, Her Universe will pay all fees and costs that we are required by law to pay.
The arbitrator shall decide all issues except for: (a) those that are specifically reserved for a court herein; (b) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement or any of the provisions of this Section 18; (c) any issues arising from or relating to the arbitrability of any Dispute; and (d) whether the arbitration administrator cannot or will not administer the arbitration in accordance with this Arbitration Agreement—all of which are for a court of competent jurisdiction to decide.
BECAUSE THE SITES PROVIDED TO YOU BY HER UNIVERSE CONCERN INTERSTATE COMMERCE, THE FEDERAL ARBITRATION ACT (FAA) GOVERNS THE ARBITRABILITY OF ALL DISPUTES. HOWEVER, APPLICABLE CALIFORNIA STATE OR U.S. FEDERAL LAW MAY ALSO APPLY TO THE SUBSTANCE OF ANY DISPUTES.
(c) SPECIAL ADDITIONAL PROCEDURES FOR MASS ARBITRATION. If twenty-five (25) or more similar claims (i.e., Disputes) are asserted against Her Universe by the same or coordinated counsel or are otherwise coordinated (“Mass Arbitrations”), and your Dispute is one such claim, you understand and agree that all Mass Arbitrations (including your Dispute) shall be subject to these additional procedures, and the resolution of your Dispute might be delayed and ultimately proceed in court if not resolved through the process set forth below. The AAA Mass Arbitration Supplementary Rules shall apply to the extent they are not inconsistent with this Section 18(c). You and Her Universe agree that any disputes over whether a Dispute or group of Disputes meet the definition of a “Mass Arbitration” shall be decided by a Process Arbitrator in accordance with the AAA Rules.
If your Dispute is part of a Mass Arbitration, you acknowledge and agree to the below bellwether process regarding resolution of your Dispute. Upon the successful filing of a Mass Arbitration, counsel for the claimants and counsel for Her Universe shall each select ten (10) Disputes (per side) to proceed first in individual arbitration proceedings as part of a staged process. The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those Disputes until they are selected to proceed to individual arbitration proceedings as part of this staged process. A single arbitrator shall preside over each Dispute in this initial group of twenty (20) proceedings. The parties will meet and confer in good faith to arrange for a mutually convenient location or manner for the arbitration of these initial twenty (20) Disputes. If the parties are unable to resolve the remaining Disputes after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, and Her Universe shall pay the mediator's fee. If the parties are unable to resolve the remaining Disputes in mediation, each side shall select twenty (20) Disputes (per side) to proceed to individual arbitration proceedings as part of a second staged process. (If there are fewer than forty (40) claims remaining, all remaining Disputes shall proceed.) The remaining Disputes shall not be filed or deemed filed in arbitration nor shall any arbitration fees be assessed in connection with those Disputes. A single arbitrator shall preside over each Dispute in this group of forty (40) proceedings. The parties will meet and confer in good faith to arrange for a mutually convenient location or manner for the arbitration of these forty (40) Disputes. If the parties are unable to resolve the remaining Disputes after the conclusion of the forty (40) proceedings, the parties shall participate in a second global mediation session before a retired state or federal court judge, and Her Universe shall pay the mediator's fee. If the parties are unable to resolve the remaining matters in the second mediation, each remaining Dispute (if any) that is not settled or withdrawn shall be opted out of arbitration and may proceed in a court of competent jurisdiction consistent with the remainder of these Terms. Nothing herein shall be construed as preventing Her Universe from removing a case from state to federal court if removal is allowed under applicable law.
If your Dispute is part of a Mass Arbitration, you acknowledge and agree that your case may be delayed as a result of the procedures outlined in the Section 18(c); however, any applicable statute of limitations shall be tolled for your claims from the time your Dispute is first submitted to the AAA until the time your Dispute is selected to proceed as part of this staged bellwether process, settled, withdrawn, filed in a court of competent jurisdiction after the second global mediation, or otherwise resolved.
A court of competent jurisdiction shall have authority to enforce this Section 18(c) and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Her Universe. The Special Additional Procedures for Mass Arbitration set forth herein and each of its requirements are essential parts of the Arbitration Agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that this section applies to your claim and is not enforceable, then your claim shall not proceed in arbitration and shall only proceed in a court of competent jurisdiction consistent with the remainder of the Terms. Either party may engage with AAA to address reductions in arbitration fees.
(d) CLASS ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT ANY AND ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS ONLY, AND NOT IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION. NEITHER YOU NOR WE WILL BE PERMITTED TO JOIN OR CONSOLIDATE CLAIMS OR ARBITRATE ANY DISPUTES AS A REPRESENTATIVE OR MEMBER OF A CLASS. Further, unless both you and we expressly agree otherwise, the arbitrator may not consolidate more than one person’s claim and the arbitrator may not otherwise preside over any form of a class, consolidated, representative, collective, or private attorney general proceeding.
If a court determines that any of the prohibitions on non-individualized relief; class, representative, and private attorney general claims; and consolidation are unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief), and all appeals from that decision have been exhausted (or the decision is otherwise final), then the parties agree that that particular claim or request for relief may proceed in court but shall be stayed pending arbitration of the remaining claims. Specifically, and notwithstanding anything to the contrary in this Section 18, the arbitrator may not issue a "public injunction" and any such "public injunction," if permitted, may be awarded only by a federal or state court. If either party is permitted to seek a "public injunction," all other claims and prayers for relief must be adjudicated in arbitration first and any such prayer or claim for a "public injunction" in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party's claim or prayer for "public injunctive relief." In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator. If this prohibition of class, representative, or consolidated arbitration is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
(e) Except as specifically provided in this Section 18, if any part or parts of the mandatory informal dispute resolution process, arbitration agreement, or class action waiver is/are found by a court of competent jurisdiction to be invalid or unenforceable as to your Dispute, then such specific part or parts shall be of no force and effect and shall be severed, and the remainder of this section shall continue in full force and effect. The mandatory informal dispute resolution process, arbitration agreement, and class action waiver will survive the termination of these Terms.
19. Binding Agreement; Updates to Terms
(a) Binding Agreement. These Terms constitute a binding agreement between you and Her Universe. These Terms will remain in effect unless and until terminated by Her Universe.
(b) Updates to Terms. Her Universe reserves the right to amend, modify or add to these Terms or any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may (but are not obligated to) notify you of the Updated Terms, and that your use of the Sites after receiving such notice constitutes your agreement to the Updated Terms. Therefore, you should review these Terms and any Additional Terms before using the Sites. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Sites from that point forward.
20. Miscellaneous
The failure of Her Universe to act with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Her Universe’s rights with respect to such breach or any subsequent breaches. No waiver by Her Universe of any of these Terms will be of any force or effect unless made in writing and signed by a duly authorized office of Her Universe. Her Universe may assign its rights and duties under these Terms to any party at any time without any notice to you. These Terms may not be assigned by you without Her Universe’s prior written consent. If any provision of these terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. You agree that these Terms will not be construed against Her Universe by virtue of having drafted them.
21. Questions
If you have any questions regarding these Terms, please contact our Internet Administrator at internetadministrator@heruniverse.com.
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