Terms of Service
Last Updated: July 4, 2018
This website (the "Site") is operated by Loyalty Brand Marketing LLC. Throughout the Site, the terms "we", "us" and "our" refer to Loyalty Brand Marketing LLC and its parent company, and all affiliates and subsidiaries. Loyalty Brand Marketing LLC offers this Site, including all information, tools and services available from this Site to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
By visiting our Site and/or purchasing something from us, you engage in our "Service" and agree to be bound by the following terms and conditions ("Terms of Service" or "Terms"), including those additional terms, conditions and policies referenced herein and/or available by hyperlink. These Terms of Service apply to all users of the Site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content.
Please carefully read the Terms of Service, which include an arbitration agreement and class action waiver (details below), because your use of the Site constitutes your agreement to follow and be bound by these Terms. By accessing or using any part of the Site, you agree to be bound by these Terms of Service without any modification whatsoever. If you do not agree to all of our Terms of Service set forth below, then you may not access the Site or use any Service. If these Terms of Service are considered an offer, acceptance is expressly limited to and conditional upon your acceptance of these Terms of Service.
You may not modify, copy, distribute, transmit, display, reproduce, publish, license, create derivative works from, transfer or sell any information, material, software, products or sources from this Site. No rights or interests in any downloaded contents or materials are transferred to you as a result of any downloading, copying or printing.
Any new features or tools which are added to this Site shall also be subject to these Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace all or any part of these Terms of Service by posting updates and/or changes to our Site. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site following the posting of any changes constitutes your acceptance of those changes.
Our store is hosted on Vae Platform. They provide us with the online e-commerce platform that allows us to sell our products and Services to you.
SECTION 1. ONLINE STORE TERMS
By agreeing to these Terms of Service, you represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Site.
You may not use our products for any illegal or unauthorized purpose nor may you, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of your access to this Site and your right to utilize the Services.
SECTION 2. GENERAL CONDITIONS
We reserve the right to refuse Service to anyone for any reason at any time.
You understand that your content (not including credit card or debit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card and debit card information is always encrypted during transfer over networks.
When you make a purchase using a debit or credit card, we will store the information of that card securely using one or more of our payment provider(s) so that you may use that card again in the future without having to enter the number. To request removal of your debit or credit card information, please simply contact us at email@example.com or write to us at 7135 Bermuda Road, Las Vegas, NV, 89119.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service or any contact on the Site through which the Service is provided, without express written permission from us.
The headings used in this Agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 3. DISPUTE RESOLUTION, ARBITRATION AGREEMENT, CLASS ACTION WAIVER
THIS SECTION 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 OR REPRESENTATIVE CLAIM, THE RIGHT TO STATUTORILY IMPOSED LIMITATIONS PERIODS, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF, AND THE RIGHT TO COURT REVIEW OF ANY AWARD—THAT MAY NOT BE AVAILABLE IN ARBITRATION.
To the fullest extent permitted by applicable law, any dispute or claim arising out of or relating in any way to these Terms, your use of our Service, your visit to the Site, or to any purchase, return or other transaction with us (including claims relating to our advertisements and disclosures, the POP V.I.P. program, email and mobile SMS messages sent by us, or our collection or use of your information) ("Dispute") shall be resolved through binding arbitration, rather than in court. The Federal Arbitration Act and federal arbitration law apply to this agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator 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 of Service as a court would. The arbitrator’s award is binding and may be entered in any court of competent jurisdiction. In lieu of arbitration, either you or we may assert individual claims in small claims court consistent with the jurisdictional and dollar limits that may apply.
Any party who intends to seek arbitration must first provide to the other party a written notice of the Dispute ("Notice"), describing the facts and circumstances of the Dispute and the specific relief sought, and including any supporting documentation. The Notice must be mailed via certified or registered mail to: Us at 7135 Bermuda Road, Las Vegas, NV 89119, or to you at your last-used billing address or the billing and/or shipping address in your online profile. If we are unable to reach an agreement to resolve the claim within thirty (30) days after the Notice is received, either party may commence arbitration.
Any arbitration under this agreement shall be conducted by the American Arbitration Association (‘AAA’), adr.org, 1.800.778.7879, and pursuant to the then applicable AAA Commercial Arbitration Rules and Mediation Procedures. You may choose to have the arbitration conducted by telephone, based on written submissions, in person in the county where you live, or at another mutually agreed location. In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, we will pay as much of your arbitration filing and hearing fees as the arbitrator deems is necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, unless the arbitrator finds some or all of your claims to be frivolous. (In determining whether an action is frivolous, the arbitrator may consider whether we have offered you a full refund of the sum you paid for items you purchased from us.)
To the fullest extent permitted by applicable law, you and we agree that any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, collective, or representative action. To the fullest extent permitted by applicable law, you further agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you seek to become a class representative. If any portion of this paragraph is found to be void or unenforceable as to a particular claim, then that claim (and only that claim) shall be resolved in federal court rather than in arbitration; if there is no federal jurisdiction, the case shall be resolved in Nevada state court.
This section will survive after the Terms terminate or your use of the Site ends. Any cause of action or claim you may have with respect to this website must be commenced within one (1) year after the claim or cause of action arises or it will be barred forever. Notwithstanding the other provisions in this section, if we have a reasonable basis to believe that you have in any manner violated or threatened to violate any of our intellectual property rights, we may bring suit in any state or federal court in the state of Nevada, rather than through arbitration. You agree that you will submit to the jurisdiction of the state and federal courts in the state of Nevada.
SECTION 4. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this Site is not accurate, complete or current. The material on this Site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more current sources of information. Any reliance on the material on this Site is at your own risk.
This Site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this Site at any time, but we have no obligation to update any information on our Site. You agree that it is your responsibility to monitor changes to our Site.
SECTION 5. MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Service (or any part or content thereof) without notice at any time. We shall not be liable to you or to any third-party for any modification, price change, suspension or discontinuance of the Service.
SECTION 6. PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy (linked in the footer to our website/Site).
We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor's display of any color will be accurate.
We reserve the right from time to time to limit the sales of our products or Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products and product pricing are subject to change at any time without notice, at our sole discretion. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this Site is void where prohibited by applicable law.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same debit or credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
We do not warrant that the quality of any products, Services, information, or other material purchased or obtained by you from or by your use of this Site will meet your expectations, or that any errors in the Service will be corrected.
Our Refund Policy (linked in the footer of our website/this Site) explains the circumstances under which we will accept refunds, and is incorporated into these Terms by reference.
Our POP V.I.P. Policy (linked in the footer of our website/this Site) explains details related to POP V.I.P., our Membership club that provides auto-shipments on a regular interval, and is incorporated into these Terms by reference. Please review those carefully before placing an order with us.
Unless otherwise noted, all products sold by this Site are made in China.
SECTION 7. SALES TAX AND FOREIGN TAXES OR DUTIES
POP Fit is required to collect sales tax in certain USA states where we meet certain sales thresholds or have a physical presence. We will collect and remit sales tax in association with your order if is being shipped to one of those states. If you join POP V.I.P., we may begin collecting sales tax on your monthly renewal orders if we become required to begin collecting sales tax in your state. If we collect sales tax for an order, it will be clearly marked on the Order E-Mail Receipt and in your Order History tab of your account.
POP Fit does not collect taxes outside of the USA. If packages are shipped outside of the USA, your country may have mandatory customs duties or sales taxes that you may be required to pay in conjunction with your order. POP Fit is unable to calculate or determine the amount of any such charges for customers outside of the USA.
SECTION 8. ACCURACY OF BILLING AND ACCOUNT INFORMATION
You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and debit or credit card numbers.
For more detail, please review our Returns Policy.
SECTION 9. OPTIONAL TOOLS
We may provide you with access to third-party tools which we neither monitor nor control. You acknowledge and agree that we provide access to such tools "as is" and "as available" without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the Site (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
SECTION 10. COPYRIGHTS & TRADEMARKS
All content of this Site, including, but not limited to, artwork, graphics, images, illustrations, photographs, text, video, audio clips, logos, and designs are our intellectual property and that of our affiliates or third parties who have licensed the materials to us. All content is protected by copyright, trademark, trade dress, and other intellectual property laws of the United States and other countries. The unauthorized reproduction or distribution of a copyrighted work is illegal. This Site in its entirety including, without limitation, the design, layout, selection, coordination, and enhancement of the content, is protected by copyright and trade dress laws. All worldwide right, title, and interest are reserved.
SECTION 11. THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this Site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy of information provided by these third-party websites and we do not warrant and will not have any liability or responsibility for any third-party materials or websites. We do not endorse the materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the appropriate third-party.
SECTION 12. USER COMMENTS, FEEDBACK AND OTHER SUBMISSIONS
If, at our request, you send certain specific submissions (for example, contest entries) or, without a request from us, you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, "comments"), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments. By submitting materials and comments to this Site, you hereby automatically grant, or warrant that the owner of such materials and comments has expressly granted, to us a royalty-free, perpetual, irrevocable and non-exclusive license to (a) use, reproduce, adopt, publish, translate and distribute any or all of such comments and materials worldwide, and (b) to incorporate such comments and materials in other works in any form, media or technology now or hereafter developed for the full term of any copyright that may exist in such materials.
We may, but have no obligation to, monitor, edit or remove content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or that is otherwise objectionable or which content violates any party’s intellectual property or these Terms of Service.
You agree that your comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service, our Site or any related website. You may not use a false e-mail address, pretend to be someone other than you, or otherwise mislead us or third-parties as to the origin of any comments. You are solely responsible for any comments you make and their accuracy. We take no responsibility and assume no liability for any comments posted by you or any third-party.
SECTION 13. PERSONAL INFORMATION
SECTION 14. ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our Site or in the Service that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, pricing information, except as required by applicable law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
SECTION 15. PROHIBITED USES
In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 16. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
We do not guarantee, represent or warrant that your use of our Service will be uninterrupted, timely, secure or error-free.
We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable.
You agree that from time to time we may remove the Service for indefinite periods of time or cancel the Service at any time, without notice to you.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL PRODUCTS AND SERVICE DELIVERED TO YOU THROUGH THE SERVICE ARE (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
In no case shall Loyalty Brand Marketing LLC, our parent company, and our subsidiaries and affiliates, their and our directors, officers, employees, partners, agents, contractors, interns, suppliers, service providers, subcontractors or licensors (collectively, the "Indemnified Parties") be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of this possibility. Because some states or jurisdictions limit or do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by applicable law. The terms in this section are valid and enforceable in the state of New Jersey, USA, to the maximum extent permissible by applicable law.
The Loyalty Brand Marketing LLC makes no representation that the content provided on this Site is applicable appropriate for use in locations outside the United States.
SECTION 17. INDEMNIFICATION
To the maximum extent permission by applicable law, you agree to indemnify, defend and hold harmless Loyalty Brand Marketing LLC and the other Indemnified Parties harmless from any injury, from any loss, claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third-party.
SECTION 18. SEVERABILITY
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service. Such determination shall not affect the validity and enforceability of the remaining provisions of these Terms.
SECTION 19. TERMINATION
The obligations and liabilities of the parties incurred prior to the termination of these Terms of Service date shall survive the termination of this Agreement/Terms of Service for all purposes.
These Terms of Service are effective unless and until terminated by either you or us. You may terminate these Terms of Service at any time by notifying us that you no longer wish to use our Services, or when you cease using our Site, whichever occurs first.
If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of these Terms of Service, we also may terminate this Agreement at any time without notice and you will remain liable for all amounts due up to and including the date of termination; and/or accordingly we may deny you access to our Services (or any part thereof).
SECTION 20. ENTIRE AGREEMENT
Our failure to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
These Terms of Service, including the documents referenced herein and any policies or operating rules posted by us on this Site or in respect to the Services, contain the entire agreement and understanding between you and us and govern your use of our Site and the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms of Service). These Terms of Service will be binding upon each party and its successors and permitted assigns. No failure or delay of any party in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of any other right, power or privilege hereunder. No agency, partnership, joint venture and/or employer/employee relationship is intended or created by these Terms.
Any ambiguities in the interpretation of these Terms of Service shall not be construed against the drafting party.
SECTION 21. GOVERNING LAW
These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed in accordance with the laws of Nevada without regard to conflicts of law principles. In no event will the Convention on the International Sale of Goods apply to the purchase and sale of products on or through the use of this Site.
SECTION 22. CHANGES TO TERMS OF SERVICE
You can review the most current version of the Terms of Service at any time at this page.
We reserve the right, at our sole discretion, to update, change or replace any part of these Terms of Service by posting updates and changes to our Site. It is your responsibility to check our Site periodically for changes. Your continued use of or access to our Site or the Service following the posting of any changes to these Terms of Service constitutes acceptance of those changes.
SECTION 23. CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at firstname.lastname@example.org