Terms & Conditions
LAST UPDATED: March 15, 2016
We may change these Terms at any time. The “Last Updated” date at the top shows when we last made changes. Please check this date, because your use of the Site is governed by the most current Terms.
Use of Site
If (and only if) you agree with these Terms, you may use this Site solely to view information about and to purchase the Poptical’s products and services for your personal, informational, and non-commercial use. You agree not to access or use the Site for any other purpose, including any purpose that is prohibited by law, and you agree to comply with all applicable laws and regulations.
Popticals grants you a limited, non-exclusive, non-assignable, non-transferable license to access, use, view, store, bookmark, download, and print content within our Site for your personal, non-commercial, and informational purposes. Your violation of these Terms will automatically revoke this license. You are not authorized to alter, modify, or create derivative works of any such content without first receiving our express written permission. You further agree not to (a) use any of our trademarks as metatags on other Sites; (b) use the Site in any manner that is illegal or impairs the operation of the Site or its availability to or use by others; (c) display any part of the Site in frames (or any content thereof via in-line links); and/or (d) use or access, or attempt to use or access, any portion of the Site for which registration is required unless you are a Registered User (as defined below) without first obtaining our express written permission to do so. You further agree not to decompile, reverse engineer, or disassemble any software or other products or processes accessible through or incorporated into the Site, and not to insert any code or product or manipulate the Site in any way that affects the user’s experience, including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load on the Site. You may not use this Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site or any of Popticals’ services. You further agree not to use any data mining, web crawlers, robots, cancelbots, spiders, Trojan horses, or any other data gathering or extraction method in connection with your use of the Site except for customary search engines used in accordance with automated instructions directed to search engines and available on the Site. You are solely responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, electrical, and other physical requirements necessary for your access to and use of our Site.
If you use the Site, you are telling us that:
- you are over the age of 18, are an emancipated minor under the laws of your state of domicile and/or residence, or otherwise have the power and authority to enter into and perform your obligations under these Terms;
- You are not under the age of 13;
- all information provided by you to Popticals is truthful, accurate, and complete and that you will maintain the accuracy and completeness of that information;
- you are an authorized signatory of method of payment that you provide to Popticals or its third-party payment processor to pay the purchase price and any applicable fees or taxes related to your purchases of products and/or services via our Site; and
- you are bound by, will comply with, these Terms and all other agreements and Terms related to your use of our Site;
Popticals may discontinue or alter any aspect of our Site, remove Content from our Site, restrict the time our Site is available, or restrict the amount of use permitted at Popticals’ sole discretion without prior notice or liability. You agree that Popticals may for any reason, or for no reason at all, immediately suspend and/or terminate your access to our Site. You further agree that such measures shall be taken at Popticals’ sole discretion without liability to you or any third party.
Our Site may provide, or third-parties may provide, links to other Sites or resources on the Internet. Popticals has no control over such Sites or resources, and you acknowledge and agree that Popticals is not responsible for the availability, accessibility, or accuracy of such external Sites or resources, and that Popticals does not endorse and is not responsible or liable for any content from such Sites or resources. The provision of such links does not imply any sponsorship, affiliation, relation or endorsement of the Sites, the content thereof, and/or their respective owners or operators.
Popticals grants you a limited, non-exclusive, revocable license to create a hyperlink to the Site (“Link”). The content surrounding any Link to the Site must not be false or misleading as to the relationship between Popticals and any third party or as to the nature of the products and services provided by Popticals. We reserve the right to revoke this license to link to the Site at any time. If we do, you agree that you will immediately remove any Link to the Site, or any portion thereof, and will not, directly or indirectly, link to the Site or any portion thereof after such revocation.
You acknowledge that our Site contains information, software, photographs, video, text, graphics, music, sounds, or other materials provided by Popticals or third parties (“Content”), some of which are protected by copyrights, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms.
The POPTICALS, CONCEAL POP-OUT WEAR, PACKS MALL. LIVE BIG. POPART, POPGEAR, POPROCK, POPSIGN, POPSTAR and all DESIGN MARKS names and logos, and all related products and services, design marks, slogans, and trade dress are the trademarks, service marks, and/or registered trademarks of Popticals (“Trademarks”). The Trademarks may not be used in any commercial manner without the prior written permission of Popticals or as expressly provided in these Terms. In addition, all page headers, custom graphics, button icons, and scripts are services marks, trademarks, and/or trade dress of Popticals or its licensors and may not be copied, distributed, imitated, posted, framed-in, or used, in whole or in part, without our prior written permission.
All Content on the Website, whether separate or compiled, including, but not limited to, text, graphics, audio clips, logos, buttons, images, software, html code, xml code, and any other protectable works of authorship, is protected by copyright. The materials and Content on the Website may not be reproduced, recreated, modified, accessed, or used in any manner in violation of these Terms. Any unauthorized use of any Content, whether owned by Popticals or any third party, may violate copyright laws, trademark laws, privacy and publicity laws, and communications regulations and statutes. You will not copy, reverse engineer, disassemble, decompile, translate, or modify the intellectual property found in the Website or grant any other person or entity the right or access to do so. If you believe that your copyrighted work is being infringed, please alert Popticals for appropriate review of your claim.
No right, title, or interest in the Content, in any downloaded materials, or in the copyrights, trademark, patent, or other intellectual property rights associated therewith is transferred to you as a result of your use of the Website. Such right, title, and interest remain the property of their respective owners.
All other trademarks and service marks contained herein are the trademarks of their respective owners.
If you register for an account on the Site, you agree to provide Popticals with current and accurate information. It is your responsibility to keep your information current. When you successfully complete registration, you become a “Registered User”.
You are responsible for maintaining the confidentiality of your username and password. You are fully responsible for all activities that occur under your username and password. Notify us immediately if your registration information changes, you suspect any unauthorized use of your account or any other breach of security, or you believe that your username and password may have been compromised. Because the security of your username and password is your responsibility, Popticals will not be liable for any loss or damage which arises out of the compromise of this information.
Popticals may allow users to place orders for products and/or services via our Site. “Order” means any order placed by a user for products and/or services via our Site that is confirmed by Popticals. In the event that you are placing an Order to purchase products and/or services, you are subject to the additional Terms of this section and any other Terms and conditions posted on the Site that enable you to place an Order. In some cases, you may be directed to a third-party Site to make purchases. In such an event, the purchase Terms in this section do not apply, and your purchase will be governed by the Terms of such third-party Site. By making such purchases, you hereby agree that Popticals has no responsibility, and shall have no liability, for any claim related to your purchases on such third-party Sites. Notwithstanding anything herein to the contrary, for Popticals products, the warranty Terms, if any, as well as any warranty disclaimers and any exclusions or limitations of warranty or remedy, set forth in this Terms as well as those on the label and/or instructions for a product control Popticals’ liability (if any) and your remedies (if any) for such a product.
Prices and availability of products are subject to change without notice. Errors will be corrected where discovered, and Popticals reserves the right to revoke any stated offer and to correct any error, inaccuracies, or omissions including after an order has been submitted and whether or not the order has been confirmed and your payment method accepted and charged. In the event your payment method has been accepted and charged, Popticals will issue you the appropriate credit within a reasonable time after your order has been revoked.
In the event you purchase product that must be shipped to you, such products will be shipped by Popticals and/or its third-party contractors within a reasonable time after processing of your Order. Shipment time will vary depending on the delivery method and service you select. Popticals does not guarantee delivery at any certain time and is not responsible for delivery delays.
In the event a product ordered by you is damaged upon receipt, Popticals, at its sole discretion, may provide a replacement product or refund the purchase price. Damaged products which Popticals will accept for return or refund are defined in our Return Policy.
Percent savings are calculated from predetermined Market Prices. Popticals provides these prices in a reasonable effort to demonstrate the relative value of products offered. However, Popticals makes no claims to having sold products at the Market Price, or that any party has sold products at that price. Due to manufacturer’s restrictions, certain items may be excluded from sale.
No Warranties, Disclaimer, & Limitation of Liability
Popticals makes reasonable efforts to maintain the Site and provide accurate, up-to-date information on the Site. HOWEVER, THE SITE IS PROVIDED “AS IS” AND NEITHER POPTICALS NOR ANY OF ITS PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS, EMPLOYEES, AGENTS, OR THE LIKE (A) MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE USABILITY, CONDITION, OR OPERATION OF THE SITE; (B) REPRESENT OR WARRANT THE USABILITY, AVAILABILITY, ACCURACY, QUALITY, RELIABILITY, SECURITY, CONDITION, OPERATION, SUITABILITY, REASONABLE CARE, TIMELINESS, TRUTHFULNESS, OR COMPLETENESS OF THE INFORMATION, PRODUCTS OR OTHER CONTENT OR OTHER MATERIALS MADE AVAILABLE THROUGH OR DISPLAYED IN ANY MANNER ON THE SITE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN TO YOU BY POPTICALS OR ANY OF ITS PARTNERS, CONTENT PROVIDERS, AGENTS, OR THE LIKE SHALL CREATE ANY WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER POPTICALS NOR ANY OF ITS PARTNERS, CONTENT PROVIDERS, AGENTS, OR THE LIKE WARRANTS THAT ACCESS TO, OR USE OF, THE SITE WILL BE UNINTERRUPTED, VIRUS FREE, OR ERROR FREE, OR THAT THE SITE (INCLUDING, WITHOUT LIMITATION, ANY CONTENT ON THE SITE) WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, AND ANY SUCH WARRANTIES ARE HEREBY DISCLAIMED. POPTICALS, ON BEHALF OF ITSELF AND ALL OF ITS PARTNERS, AGENTS, AND THE LIKE, HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT WITH RESPECT TO THE SITE.
POPTICALS, ON BEHALF OF ITSELF AND ALL OF ITS PARTNERS, AGENTS, AND THE LIKE, EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Under no circumstances shall Popticals or any of its employees, directors, officers, agents, vendors, or suppliers be liable TO YOU for (A) any DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM, OR RELATED TO, THE LOSS, DELAY, OMISSION, ERROR, OR INABILITY TO USE THE SITE (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, AND/OR OTHER MATERIALS OFFERED OR OBTAINED THROUGH THE SITE) or (B) ANY direct, indirect, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR THE LOSS OF PROFITS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS, THE USE OR PERFORMANCE OF THE SITE, OR ANY OTHER MATTER IN ANY WAY CONNECTED WITH THE SITE (INCLUDING, WITHOUT LIMITATION, THE PROVISION OF, RECIEPT OF, AND/OR USE OF, ANY INFORMATION, PRODUCTS, SERVICES, USER CONTENT, AND/OR OTHER MATERIALS), WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE AND EVEN IF POPTICALS, ITS PARTNERS, SUPPLIERS, CONTENT PROVIDERS, LICENSORS, EMPLOYEES, AGENTS, OR THE LIKE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You hereby waive any claims with respect to such damages.
IN ALL EVENTS, POPTICALS’S MAXIMUM LIABILITY TO YOU FOR ANY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS, THE USE OR PERFORMANCE OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, AND/OR OTHER MATERIALS) HEREUNDER SHALL NOT EXCEED TWENTY-FIVE U.S. DOLLARS ($25.00) IN THE AGGREGATE. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE (INCLUDING, WITHOUT LIMITATION, ANY INFORMATION, PRODUCTS, SERVICES, content, AND/OR OTHER MATERIALS), OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE.
These provisions represent a reasonable allocation of the risks under these Terms. Popticals’ willingness to allow you to use the Site reflects this allocation of risk and the disclaimers, waivers, and limitations of liability specified herein.
User Content & Feedback
We may provide means for users to provide User Content, for example comment areas, chat rooms, notes, messages, suggestions, and forums. While we welcome your User Content, you may not use these facilities to harass, bully, defame, threaten or otherwise violate the rights of others, and you are not allowed to post profane, obscene, indecent, defamatory or unlawful material. Popticals does not, however, monitor any such facilities, and assumes no responsibility or liability to do so.
With respect to any User Content you provide, you acknowledge and agree that such User Content is not private, and may be read by others (including third parties). You understand and agree that it is solely your responsibility to monitor what you provide to protect whatever privacy, commercial or other interests you may have, and that you are affirmatively waiving and giving up any rights you have in such material by providing it to us.
Anything you post or submit becomes Poptical’s sole and exclusive property, which we may then use in perpetuity any manner we see fit (including publishing or republishing for advertising and promotional purposes), with no compensation whatsoever to you. It is your choice whether to provide us with any User Content, including stories, ideas, concepts, art or other original creative materials. If you provide us with any User Content, you are assigning to us in perpetuity all rights to such material, you are giving up any rights you may have or have had in such materials, you represent and warrant that you hold all right, title and interest to such materials, and that your submission of same does not and will not violate or infringe the rights of third parties. If you disagree with any part of these terms, don’t provide us with the User Content.
INDEMNIFICATION: You agree to defend, indemnify, and hold harmless Popticals, its officers, members, directors, employees, content providers, and agents from and against any and all claims, liabilities, suits, damages, losses or expenses, including attorneys' fees and costs and expenses, arising out of (a) a breach or alleged breach by you of any of your representations, warranties, covenants, or obligations under these Terms; (b) any claims based upon your access to, use of, or posting of User Content to the Site or information on the Site, including, without limitation, any claim of libel, defamation, violation of legal rights of others (including rights of privacy or publicity), loss of service by other subscribers, and/or infringement of intellectual property rights; and/or (c) any negligence or willful misconduct by you.
NO WAIVER. The failure of either party to insist upon or enforce strict performance by the other party of any provision of these Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between you and Popticals nor the trade practice shall modify any provision of these Terms.
NO ASSIGNMENT. You may not assign, convey, subcontract, or delegate your rights, duties, or obligations under these Terms..
INJUNCTION AND OTHER REMEDIES. The parties agree that breach of the provisions of these Terms would cause irreparable harm and significant injury to Popticals which would be both difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that Popticals has the right to enforce the provisions of these Terms by injunction (without necessity of posting bond), specific performance or other equitable relief without prejudice to any other rights and remedies Popticals may have for your breach of these Terms.
GOVERNING LAW The validity and effect of these Terms shall be governed by and construed and enforced in accordance with the laws of the State of Missouri, USA, without regard to its conflicts or choice of laws principles. Any suit, action, or proceeding concerning the Site, its use, these Terms, any sale, or any other product, service, policy, or procedure of Popticals must be brought in a court of competent jurisdiction in Saint Louis County, Missouri. By accessing and using the Site, you consent and submit to the exclusive jurisdiction of the state courts located in Saint Louis County, Missouri or in the U.S. District Court for the Eastern District of Missouri. In any such suit, action, or proceeding, you irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such suit, action, or proceeding in any such court or that any such suit, action, or proceeding which is brought in any such court has been brought in an inconvenient or improper forum.
FEES, COSTS & EXPENSES If any action at law or in equity is necessary to enforce the Terms of these Terms, the prevailing party will be entitled to reasonable fees of attorneys, accountants and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
ADDITIONAL TERMS Additional terms and conditions may apply to purchases of goods and services through the Site, and you agree to abide and be bound by any such other terms and conditions.
USE OF SITE OUTSIDE THE UNITED STATES Popticals does not provide services outside of the United States and makes no representation that Content or other material or information on the Site is appropriate to or available in locations outside of the United States. You may not use the Site or export Content in violation of United States export laws, regulations or restrictions. If you access the Site from outside of the United States, you are responsible for compliance with all applicable laws.