IMPORTANT NOTICE FOR RESIDENTS IN THE
UNITED STATES AND CANADA ONLY: THIS AGREEMENT AND YOUR USE OF OUR SERVICES IS
SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED
BELOW.
Last Updated: November 23, 2020
CONTENTS
1.GENERAL >
2.USE OF OUR SERVICES >
3.PRIVACY & COOKIE POLICY >
4.ERRORS >
5.TRADE RULES >
6.INTELLECTUAL PROPERTY AND OWNERSHIP >
7.THIRD PARTY LINKS AND RESOURCES >
8.TEXT MESSAGING PROGRAM >
9.EVENTS BEYOND OUR CONTROL >
10.LIABILITY FOR PURCHASED PRODUCTS,
WAIVER, AND STATUTORY CONSUMER RIGHTS >
11.LIMITATION OF LIABILITY >
12.LEGAL DISPUTES AND ARBITRATION AGREEMENT
FOR USERS IN THE UNITED STATES AND CANADA >
13.LEGAL TERMS >
14.CONTACT US >
1.GENERAL
1.1 Scope. Welcome to BURPRISED.com. This
Terms & Conditions (“Agreement” or “Terms”) is a contract between you and
ZOETOP Business Co., Limited (collectively, “BURPRISED,” “we”, “us” or “our”),
governing your use of our website at BURPRISED.com (the “Site”), any mobile
applications (“Apps”) that hyperlink to this Agreement, or any other websites,
pages, features, or content owned and operated by us that hyperlink to this
Agreement (collectively, including the Site and Apps, the “Services”). Please
note that all payments on the us.burprised.com website are processed by Fashion
Direct Corp., a U.S. corporation.
By accessing or using the Services in any
manner, including, but not limited to, visiting or browsing the Site,
downloading the mobile applications, registering an account, or contributing
content or other materials to the Site or on or via the Apps, you expressly
understand, acknowledge and agree to be bound by the Terms of Use. You are only
authorized to use the Services if you agree to abide by all applicable laws and
to these Terms.
In addition, you may read our Privacy &
Cookie Policy at any time for more information about how BURPRISED collects,
stores, and protects your information when you use the Services. Our Privacy
& Cookie Policy is hereby incorporated by reference into these Terms &
Conditions as though fully set forth herein.
1.2 Updates to the Terms. We reserve the
right to modify the Terms of Use, including the Privacy & Cookie Policy, at
any time, in our sole discretion. If we modify material terms to this
Agreement, such modification will be effective after we send you notice of the
amended agreement. Such notice will be in our sole discretion, and the manner
of the notification may include, for example, via email, posted notice on the
Site or Apps, or other manner.
Your failure to cease use of the Services
after receiving notification of the modification will constitute your
acceptance of the modified terms.
1.3 Acceptance of Terms. To shop with us,
you need to be at least 16 years old. Any accessing, browsing, or otherwise
using the Services indicates your agreement to all the terms and conditions in
this Agreement. If you disagree with any part of the Terms then you should
immediately discontinue access or use of the Services. Please read this
Agreement carefully before proceeding.
If you have any questions regarding these
Terms & Conditions or our Privacy & Cookie Policy, you may contact us
anytime at our Customer Service Platform .
2.USE OF OUR SERVICES
2.1 Representations. When you use our
Services, you agree to the processing of the information and details and you
state that all information and details provided are true and correspond to
reality. You represent and warrant that you are at least 16 years old or
visiting the Services under the supervision of a parent or guardian. Subject to
the terms and conditions of this Agreement, BURPRISED hereby grants you a
limited, revocable, non-transferable and non-exclusive license to access and
use the Services by displaying it on your internet browser, for our Site, or on
your mobile devices, for our Apps, only for the purpose of shopping for
personal items sold on the Site or Apps and not for any commercial use or use
on behalf of any third party, except as explicitly permitted by BURPRISED in
advance. Any breach of this Agreement shall result in the immediate revocation
of the license granted in this paragraph without notice to you.
2.2 Limitations on Use. Except as permitted
in the paragraph above, you may not reproduce, distribute, display, sell,
lease, transmit, create derivative works from, translate, modify,
reverse-engineer, disassemble, decompile or otherwise exploit the Services or
any portion of them unless expressly permitted by BURPRISED in writing. You may
not make any commercial use of any of the information provided on the Services
or make any use of the Services for the benefit of another business unless
explicitly permitted by BURPRISED in advance. BURPRISED reserves the right to
refuse service, terminate accounts, and/or cancel orders in its discretion,
including, without limitation, if we believe that customer conduct violates
applicable law or is harmful to our interests.
You shall not upload to, distribute, or
otherwise publish through the Services any content, information, or other
material that: (a) violates or infringes the copyrights, patents, trademarks,
service marks, trade secrets, or other proprietary rights of any person; (b) is
libelous, threatening, defamatory, obscene, indecent, pornographic, or could
give rise to any civil or criminal liability under local or international law;
or (c) includes any bugs, logic bombs, viruses, worms, trap doors, Trojan
horses or other code, material or properties which are malicious or
technologically harmful. BURPRISED may assign you a password and account
identification to enable you to access and use certain portions of the
Services.
Additionally, you agree not to:
Use the Services for any unlawful purposes,
or that could violate any applicable federal, state, local, or international
law or regulation;
To engage in any conduct that restricts or
inhibits anyone’s use or enjoyment of the Services, or which, as determined by
us, may harm us or other persons using the Services or expose them to
liability;
Use the Services in any manner that could
disable, overburden, damage, or impair the Site or Apps or any other party’s
use of the Services;
Use any robot, spider or other automated
device, process, or means to access the Service for any purpose;
Use the Services to distribute unsolicited
promotional or commercial content, or solicit other persons using the Services
for commercial purposes;
Otherwise attempt to interfere with the
proper working of the Service.
2.3 Account Creation and Termination. In
order to access some features available on the Services, you will have to
create an account. You may not use another person’s account. Each time you use
a password or identification, you will be deemed to be authorized to access and
use the Site or Apps in a manner consistent with the terms and conditions of
this Agreement, and BURPRISED has no obligation to investigate the
authorization or source of any such access or use of the Services.
You will be solely responsible for all
access to and use of the Services by anyone using the password and
identification originally assigned to you whether or not such access to and use
of this site is actually authorized by you, including without limitation, all
communications and transmissions and all obligations (including, without
limitation, financial obligations) incurred through such access or use. You are
solely responsible for protecting the security and confidentiality of the
password and identification assigned to you. You shall immediately notify BURPRISED
of any unauthorized use of your password or identification or any other breach
or threatened breach of the Site or App's security.
From time to time, we may restrict access
to some or all parts of the Services, including the ability to upload
documents, make payments, or send messages
From time to time, we may restrict access
to some or all parts of the Services, including the ability to upload
documents, make payments, or send messages
We may terminate your access to the
Services at any time, in our sole discretion, without cause or notice, or if we
believe you have breached these Terms. You may terminate your account at any
time, for any reason, by following any such instructions within the Site or
App, or by contacting us as described in the “Contact Us” section below.
2.4 Customs. In accordance with Customs
regulations customers must provide valid and accurate data. All consignee
names, address and payers name should be valid. Certain countries request that
the consignee submit their ID or passport to clear the package or for payment
verification purposes. It is the customer’s sole responsibility for the
accuracy of data that they provide to us. Should any information be incorrect
and prevent any shipment or deliveries or customs clearance, we will not be
held responsible and will not offer any compensation in such cases. As the
importer, customers are responsible for complying with all laws and regulations
in their own countries. Please refer to our Privacy & Cookie Policy for
more information.
3.PRIVACY & COOKIE POLICY
When you use our Services and place orders
through them, you agree to provide us with your email address, postal address
and/or other contact details truthfully and exactly. You also agree that we may
use this information to contact you in the context of your order if necessary
We respect your right to privacy. To see
how we collect and use your personal information, including how to unsubscribe
from non-transactional communications from us, please see our Privacy &
Cookie Policy .
4.ERRORS
In case you detect that an error occurred
when entering your personal data during your registration as a user of our
Services, you can modify them in the section "My Account". In any
case, you will be able to correct errors related to the personal data provided
during the purchase process by contacting us, as well as exercising the right
of rectification contemplated in our Privacy & Cookie Policy through our
Site and Apps. The Services display confirmation boxes in various sections of
the purchase process that do not allow the order to continue if the information
in these sections has not been correctly provided. Also, the Services offer
details of all the items you have added to your shopping cart during the
purchase process, so that before making the payment, you can modify the details
of your order.
If you detect an error in your order after
the completion of the payment process, you should immediately contact our
customer service or email address above to correct the error.
While BURPRISED strives to provide accurate
product and pricing information, pricing or typographical errors may occur. BURPRISED
cannot confirm the price of an item until after you order. In the event that an
item is listed at an incorrect price or with incorrect information due to an
error in pricing or product information, BURPRISED shall have the right, at our
sole discretion, to refuse or cancel any orders placed for that item. In the
event that an item is mis-priced, we may, at our discretion, either contact you
for instructions or cancel your order and notify you of such cancellation.
5.TRADE RULES
5.1 Price and Payment. All prices are
exclusive of Sales & Use Tax and other taxes (where applicable) which will
be charged to you separately at the applicable rate. All prices are correct at
the time of entering the information on to the system. If for some reason we
are unable to ship your goods, the value of the items that are not shipped will
be refunded to your wallet in your BURPRISED Account or to the original method
of payment.
All prices are exclusive of delivery
charges. The total cost of the order is the price of the products ordered and
the delivery charge plus Sales & Use Tax and other applicable taxes.
Prices may change at any time, but (other
than as set out above) changes shall not affect the orders for which we have
sent an Order Confirmation.
Once you have selected all articles that
you wish to buy, they will be added to your basket. The next step will be to
process the order and make the payment. To that end, you must follow the steps
of the purchase process, indicating or verifying the information requested in
each step. Furthermore, throughout the purchase process, before payment, you
can modify the details of your order. You are provided with a detailed
description of the purchase process in the Shopping Guide. Also, if you are a
registered user, a record of all the orders placed by you is available in
"My Account" area. You may use, as payment method, the following
cards: Visa, Mastercard, American Express, Union Pay, Paypal and online banking
etc.
To minimize the risk of non-authorised
access, your credit card details will be encrypted. Once we receive your order,
we request a pre-authorisation on your card to ensure that there are sufficient
funds to complete the transaction. The charge on your card will be made at the
time your order leaves our warehouse.
When you click "Authorise
Payment", you are confirming that the credit card is yours. Credit cards
are subject to verification and authorisation by the card issuing entity. If
the entity does not authorise the payment, we shall not be liable for any delay
or failure to deliver and we will be unable to conclude any contract with you.
For European Economic Area customers,
payment collection is operated by our UK subsidiary ZENITH BUSINESS CO.,
LIMITED (ZENITH), Address: Unit 212 Screenworks Highbury Grove, Highbury East,
London, England, N5 2EF. ZENITH will be in charge of all the relevant issues
relating to the payment of EU customer such as refund, cancellations, returns,
and purchase disputes, as well as customer support, etc.
For United States customers, payment
collection is operated by Fashion Direct Corp., a U.S. corporation, located at
1000 N West Street, Suite 1200, office 1271, Wilmington, DE 19801.
5.2 Colors. We have made every effort to
display, as accurately as possible, the colors of our products that appear on
the Services. However, as the actual colors you see will depend on your
monitor, we cannot guarantee that your monitor's display of any color will be
accurate.
5.3 Packing. Unless otherwise provided, we
will comply only with its minimum packing standards for the method of transportation
selected. The cost of all special packing, loading or bracing requested by you
will be paid for by you.
5.4 Shipping & Delivery. BURPRISED
ships from different warehouses in different countries. For orders with more
than one item, we may split your order into several packages according to stock
levels at our own discretion. We aim to deliver orders as quickly as possible.
However, sometimes during busy sale periods, deliveries may take longer. If you
have not received your delivery within 180 business days, please contact our
Customer Services Platform .
5.5 Title and risk of loss. Delivery to
carrier shall constitute delivery to Buyer, and thereafter risk of loss or
damage shall pass to Buyer. Any claim of Buyer relative to damage during
shipping or delivery should be made directly to the carrier. Any claims by
Buyer against BURPRISED for shortage or damage occurring prior to such delivery
to carrier must be made within five (5) days after receipt of the goods and
accompanied by original transportation bill signed by carrier noting that
carrier received the goods from BURPRISED in the condition claimed.
Notwithstanding passage of the risk of loss to Buyer, title and right of
possession to the goods sold hereunder shall remain with BURPRISED until all
payments hereunder, including deterred payments evidenced by notes or
otherwise, Interest, carrying charges, shall have been made in cash, and Buyer
agrees to do all acts necessary to perfect and maintain such right and title in
BURPRISED.
5.6 Return of product. Goods can be
returned in designated period. The exact return period and return policy
differs from country to country. Please contact our customer service for the
detailed information. Customers returning goods are responsible for freight
charges.
Wrong size items and quality problem items
can be exchanged. For defective products, if a defect or damage is confirmed on
the returned products, we will give you a complete refund including the charges
you have accrued of delivery and return. The refund will be paid either to your
wallet of BURPRISED account or to the original method of payment.
The following items cannot be returned or
exchanged: bodysuits, lingerie & sleepwear, swimwear, jewelry, and
accessories (except scarves, bags, and mermaid blankets).
5.7 Reviews, Comments and Submissions.
Except as otherwise provided elsewhere in this Agreement or on the Services,
anything that you submit or post to the Services and/or provide to BURPRISED.com,
including, without limitation, picture, video, ideas, know-how, techniques,
questions, reviews, comments, and suggestions (collectively,
"Submissions") is and will be treated as non-confidential and
nonproprietary, and by submitting or posting, you agree to irrevocably license
the entry and all IP rights related thereto (excluding the moral rights such as
authorship right) to BURPRISED without charge and BURPRISED shall have the
royalty-free, worldwide, perpetual, irrevocable, and transferable right to use,
copy, distribute, display, publish, perform, sell, lease, transmit, adapt,
create derivative works from such Submissions by any means and in any form, and
to translate, modify, reverse-engineer, disassemble, or decompile such
Submissions. All Submissions shall automatically become the sole and exclusive
property of BURPRISED and shall not be returned to you and you agree not to
raise any dispute in connection with any use of the entry by BURPRISED in the
future.
You warrant that your Submissions, in whole
or in part, are clear and free of any IP right infringement, disputes or third
party claims. BURPRISED assumes no liability for any misuse of copyright or any
other rights of third parties by you. You undertake to defense for and
indemnify BURPRISED against any losses caused due to the use of the entries for
any purposes.
In addition to the rights applicable to any
Submission, when you post comments or reviews to the Site or Apps, you also
grant BURPRISED the right to use the name that you submit with any review,
comment, or other content, if any, in connection with such review, comment, or
other content. You represent and warrant that you own or otherwise control all
of the rights to the reviews, comments, and other content that you post on this
site and that use of your reviews, comments, or other content by BURPRISED will
not infringe upon or violate the rights of any third party. You shall not use a
false e-mail address, pretend to be someone other than yourself, or otherwise
mislead BURPRISED or third parties as to the origin of any Submissions or
content. BURPRISED may but shall not be obligated to remove or edit any Submissions
(including comments or reviews) for any reason.
Please note that individuals under the age
of 18 are prohibited from posting images to our Services of themselves or
others who are under the age of 18.
6.INTELLECTUAL PROPERTY AND OWNERSHIP
6.1 Content. The Site and Apps, including
all of its information and content, such as the text, software, scripts,
graphics, photos, sounds, music, videos, and interactive features
(collectively, “Content”) provided as part of the Services belong at all times
to BURPRISED or to those who grant us the license for their use. You may use
the Content only to the extent that we or the usage licensers authorize
expressly.
6.2 BURPRISED Marks. In addition, the “BURPRISED”
trademarks, service marks, icons, graphics, wordmarks, designs and logos
contained therein (“Marks”), are owned by Zoetop Business Co. Ltd. “BURPRISED”
and the Marks of BURPRISED are trademarks in the United States and other
countries for which applications are pending or registrations have issued. You
do not have, and will not acquire, any right, title, or interest in or to any
of the Marks. The BURPRISED Marks, whether on any product offered for sale on
the Site or the Apps, or appearing as a logo or text on any portion of the
Site, is not a representation that Zoetop Business Co. Ltd. is the owner of any
copyright or other intellectual property rights in the products offered for
sale on the Site or the Apps. Zoetop Business Co. Ltd. sources some of its
products from third party manufacturers and wholesalers.
6.3 Rights Reserved. Content on the
Services is provided to you as is for your information only and may not be
downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed,
sold, licensed, or otherwise exploited for any other purposes whatsoever
without the prior written consent of BURPRISED or the respective owners or
licensors. We reserve all rights not expressly granted in and to the Content.
You acknowledge and agree that any questions, comments, suggestions, ideas,
feedback or other information about the Services, provided by you to us are
non-confidential and shall become the sole property of BURPRISED.
You agree to not engage in the use,
copying, or distribution of any of the Content other than expressly permitted
herein. You agree not to circumvent, disable or otherwise interfere with
security-related features of the website or features that prevent or restrict
use or copying of any Content or enforce limitations on use of the website or
the Content therein.
7.THIRD PARTY LINKS AND RESOURCES
Our Site and Apps may contain links to
third-party sites that are not owned or controlled by us.
We have no control over, assume no
responsibility for, and do not endorse or verify the content, privacy policies,
or practices of any third-party sites or services. We make no warranties or
representations about the accuracy, completeness, or timeliness of any content
posted on the Site or our Apps by anyone other than us. We strongly advise you
to read all third-party terms and conditions and privacy policies.
8.TEXT MESSAGING PROGRAM
8.1 Enrollment. If you enroll in our text
messaging (SMS) program, you will be asked to consent expressly -- evidenced by
provision of your mobile telephone number, specified prompted key word(s), or
SMS/MMS or other text message affirmative response, as your signature to agree
to receive recurring automated marketing messages where such messages may be
sent by us or our vendors to the mobile number you provided at opt-in. Such
consent is not a condition of making any purchase.
General Terms & Disputes. Without
limitation our text messaging program is subject to these complete Terms of
Service, which contain provisions that govern how claims you and Zoetop have
against each other are resolved (see Legal Disputes and Arbitration Agreement
Section below), including an obligation to arbitrate disputes, which will,
subject to limited exceptions, require you to submit claims you have against us
to binding arbitration, unless you opt-out in accordance with the Arbitration
Section below.
8.2 Opting Out. You can opt out from
receiving SMS/MMS text messages by responding STOP to any message you receive
in our text messaging program, or just texting STOP to the number from which
you currently are receiving our text messages. In either case, you will receive
one additional message confirming that your request has been processed.
8.3 Your Own Wireless Plan. As always,
message and data rates may apply for any messages sent to and by you. If you
have any questions about your text plan or data plan, it is best to contact
your wireless provider.
8.4 Your Duties for Your Own Phone Number.
You represent that you are the account holder or customary user for the mobile
telephone number that you provide when enrolling in our text messaging program.
If you change or deactivate that number, you are responsible for notifying us
at data@burprised.com immediately. Neither we, our vendors, and/or any mobile
carrier is liable for delayed or undelivered messages. You agree to indemnify
us in full for all claims, expenses, and damages related to or caused in whole
or in part by your failure to notify us if you change your telephone number,
including, but not limited to, all claims, expenses, and damages related to or
arising under the Telephone Consumer Protection Act.
8.5 Participation Subject to Termination or
Change. We may suspend or terminate your receipt of automated marketing
messages from us if we believe you are in breach of these Terms. Your receipt
of these messages is also subject to termination in the event that your mobile
telephone service terminates or lapses. We reserve the right to modify or
discontinue, temporarily or permanently, all or any part of these messages,
with or without notice to you.
9.EVENTS BEYOND OUR CONTROL
We will not be liable for any
non-compliance or delay in compliance with any of the obligations we assume
under the Terms or other contracts when caused by events that are beyond our
reasonable control ("Force Majeure"). Force Majeure shall include any
act, event, failure to exercise, omission or accident that is beyond our
reasonable control, including, among others, the following:
Strike, lockout or other forms of protest.
Civil unrest, revolt, invasion, terrorist
attack or terrorist threat, war (declared or not) or threat or preparation for
war.
Fire, explosion, storm, flood, earthquake,
collapse, epidemic or any other natural disaster.
Inability to use trains, ships, aircraft,
motorized transport or other means of transport, public or private.
Inability to use public or private
telecommunication systems.
Acts, decrees, legislation, regulations or
restrictions of any government or public authority.
Strike, failure or accident in maritime or
river transport, postal transport or any other type of transport.
It shall be understood that our obligations
deriving from the Terms or other contracts are suspended during the period in
which Force Majeure remains in effect and we will be given an extension of the
period in which to fulfil these obligations by an amount of time equal to the
time that the situation of Force Majeure lasted. We will provide all reasonable
resources to end the situation of Force Majeure or to find a solution that
enables us to fulfil our obligations by virtue of the Terms or other contracts
despite the situation of Force Majeure.
10.LIABILITY FOR PURCHASED PRODUCTS,
WAIVER, AND STATUTORY CONSUMER RIGHTS
10.1 BURPRISED Liability. Unless otherwise
indicated expressly in these Conditions, our liability regarding any product
acquired on our website shall be limited strictly to the price of purchase of
said product. Notwithstanding the above, our liability shall not be waived nor
limited in the following cases:
in case of death or personal harm caused by
our negligence;
in case of fraud or fraudulent deceit; or
in any case in which it was illegal or illicit
to exclude, limit or attempt to exclude or limit our liability.
10.2 Waiver of Liability. Notwithstanding
the paragraph above, and to the extent legally allowed, and unless these Terms
indicate otherwise, we shall not accept any liability for the following losses,
regardless of their origin:
loss of income or sales;
operating loss;
loss of profits or contracts;
loss of forecast savings;
loss of data; and
loss of business or management time.
10.3 Warranties. Due to the open nature of
the Services and the possibility of errors in storage and transmission of
digital information, we do not warrant the accuracy and security of the
information transmitted or obtained by means of the Services, unless otherwise
indicated expressly on the Services. All product descriptions, information and
materials shown on the Services are provided "as is", with no express
or implied warranties or conditions of the same, except those legally
established. In this sense, if you are contracting as a consumer or user, we
are obliged to deliver goods that are in conformity with the mutually intended
transaction, in accordance with commercial reasonable expectations, being
liable to you for any lack of conformity which exists at the time of delivery.
It is understood that the goods are in conformity with the transaction or
intended purchase if they: (i) comply with the description given by us and
possess the qualities that we have presented in this website; (ii) are fit for
the purposes for which goods of this kind are normally used; (iii) show the
quality and performance which are normal in goods of the same type and which
can reasonably be expected To the extent permitted by law, we exclude all
warranties and conditions (whether express or implied), except those that may
not be excluded legitimately.
11.LIMITATION OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY SINCE IT
LIMITS THE LIABILITY OF BURPRISED TO YOU.
(1)BY USING THE SERVICES PROVIDED BY BURPRISED,
YOU HEREBY ACKNOWLEDGE THAT WE ARE PROVIDING THE SERVICES, INCLUDING THE SITE
AND MOBILE APPS, ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BURPRISED
EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY,
TITLE, ACCURACY, COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR
A PARTICULAR PURPOSE, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ANY WARRANTIES
ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
(2)WE MAKE NO PROMISES WITH RESPECT TO, AND
EXPRESSLY DISCLAIM ALL LIABILITY FOR: (1) PRODUCTS, SERVICES, INFORMATION,
PROGRAMMING, AND/OR ANYTHING ELSE PROVIDED BY A THIRD PARTY THAT IS ACCESSIBLE
TO YOU THROUGH THE SERVICES; OR (2) THE QUALITY OR CONDUCT OF ANY THIRD PARTY
YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICES.
(3)YOU AGREE THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, BURPRISED WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF
LIABILITY. WITHOUT LIMITING THE FOREGOING, YOU AGREE THAT, TO THE MAXIMUM
EXTENT PERMITTED BY LAW, BURPRISED ENTITIES WILL NOT BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, LOSS OF
PROFITS, BUSINESS INTERRUPTION, REPUTATIONAL HARM, OR LOSS OF DATA (EVEN IF
FORESEEABLE) ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF, OR
INABILITY TO USE, THE SERVICES.
(4)YOUR SOLE REMEDY FOR DISSATISFACTION
WITH THE SERVICES IS TO CEASE USE OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS
ON IMPLIED WARRANTIES OR EXCLUSIONS OF LIABILITY FOR CERTAIN TYPES OF DAMAGES.
AS A RESULT, THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE
OR IN PART.
12.LEGAL DISPUTES AND ARBITRATION AGREEMENT
FOR USERS IN THE UNITED STATES AND CANADA
Please Read the Following Clauses Carefully
– It May Significantly Affect Your Legal Rights, Including Your Right to File a
Lawsuit in Court
12.1 Initial Dispute Resolution. We are
available by email at legal@burprised.com to address any concerns you may have
regarding your use of the Services. Most concerns may be quickly resolved in
this manner. Each of you and we agree to use best efforts to settle any
dispute, claim, question, or disagreement directly through consultation and
good faith negotiations which shall be a precondition to either party
initiating a lawsuit or arbitration.
12.2 Agreement to Binding Arbitration. If
we do not reach an agreed upon solution within a period of thirty (30) days
from the time informal dispute resolution is pursued pursuant to the
immediately preceding paragraph, then either party may initiate binding
arbitration. All claims arising out of or relating to the Terms &
Conditions (including their formation, performance and breach), your and our
relationship and/or your use of the Services shall be finally settled by
binding arbitration administered by JAMS, in accordance with the JAMS
Streamlined Arbitration Rules and Procedures, excluding any rules or procedures
governing or permitting class actions. Each party will have the right to use
legal counsel in connection with arbitration at its own expense. You and we
shall select a single neutral arbitrator in accordance with the JAMS
Streamlined Arbitration Rules and Procedures. The arbitrator, and not any
federal, state or local court or agency, shall have exclusive authority to
resolve all disputes arising out of or relating to the interpretation,
applicability, enforceability or formation of the Terms of Use, including, but
not limited to, any claim that all or any part of the Terms & Conditions is
void or voidable. The arbitrator shall be empowered to grant whatever relief
would be available in a court under law or in equity. The arbitrator’s award
shall be in writing and provide a statement of the essential findings and
conclusions, shall be binding on you and us and may be entered as a judgment in
any court of competent jurisdiction. The interpretation and enforcement of the
Terms & Conditions shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration
may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you
initiate arbitration, to the extent the filing fee for the arbitration exceeds
Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost.
If we are required to pay the additional cost of the filing fees, you should
submit a request for payment of fees to JAMS along with your form for
initiating the arbitration, and we will make arrangements to pay all necessary
fees directly to JAMS. We will also be responsible for paying all other
arbitration costs arising in connection with the arbitration, other than costs
incurred by you for legal counsel, travel and other out-of-pocket costs and
expenses not constituting fees or amounts payable to JAMS. You will not be
required to pay fees and costs incurred by us if you do not prevail in
arbitration. We will also pay JAMS to reimburse you for any portion of the $250
filing fee that is more than what you would otherwise have to pay to file suit
in a court of law.
You and we understand that, absent this
mandatory provision, you and we would have the right to sue in court and have a
jury trial. You and we further understand that the right to discovery may be
more limited in arbitration than in court.
12.3 Class Action and Class Arbitration
Waiver. You and we each further agree that any arbitration shall be conducted
in our respective individual capacities only and not as a class action, and you
and we each expressly waive our respective right to file a class action or seek
relief on a class basis. If any court or arbitrator determines that the class
action waiver set forth in this paragraph is void or unenforceable for any
reason or that an arbitration can proceed on a class basis, then the
arbitration provision set forth above shall be deemed null and void in its
entirety and you and we shall be deemed to have not agreed to arbitrate
disputes.
12.4 Exception - Small Claims Court Claims.
Notwithstanding your and our agreement to resolve all disputes through
arbitration, either you or we may seek relief in a small claims court for
disputes or claims within the scope of that court’s jurisdiction.
12.5 California Private Attorneys General
Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all
disputes through arbitration, either party may seek relief in a court of law
for a claim arising under California’s Private Attorneys General Act.
12.6 30-Day Right to Opt-Out. You have the
right to opt-out and not be bound by the arbitration and class action waiver
provisions set forth above by sending written notice of your decision to
opt-out by emailing us at legal@burprised.com. The notice must be sent within
thirty (30) days of your agreement to the Terms & Conditions, otherwise you
shall be bound to arbitrate disputes in accordance with the terms of this
Section. If you opt-out of these arbitration provisions, we also will not be
bound by them.
12.7 Exclusive Venue for Litigation. To the
extent that the arbitration provisions set forth above do not apply or if you
have opted out of arbitration, you and we agree that any litigation between you
and us shall be filed exclusively in state or federal courts located in California
(except for small claims court actions which may be brought in the county where
you reside). You and we expressly consent to exclusive jurisdiction in
California for any litigation other than small claims court actions. In the
event of litigation relating to the Terms & Conditions or the Services, you
and we agree to waive, to the maximum extent permitted by law, any right to a
jury trial, except where a jury trial waiver is not permissible under
applicable law.
13.LEGAL TERMS
13.1 Assignment. You may not assign or
transfer this Agreement (or any of your rights or obligations under this
Agreement) without prior written consent. Any attempted assignment or transfer
without complying with the foregoing will be void. We may freely assign or
transfer this Agreement. This Agreement inures to the benefit of and is binding
upon the parties and their respective legal representatives, successors, and
assigns.
13.2 Entire Agreement; No Waiver. These
Terms, together with our Privacy & Cookie Policy, and any other legal
notices published on the Site or Apps, shall constitute the entire agreement
between you and us concerning the Services, and supersedes all prior terms,
agreements, discussions and writings regarding the Services. If any provision
of the Terms is found to be unenforceable, then that provision shall not affect
the validity of the remaining provisions of the Terms, which shall remain in
full force and effect.
No waiver of any term of the Terms &
Conditions shall be deemed a further or continuing waiver of such term or any
other term. Our failure to assert any right or provision under the Terms shall
not constitute a waiver of such right or provision.
13.3 Indemnification. You agree to release,
indemnify, and defend BURPRISED and any subsidiaries, affiliates, related
companies, suppliers, licensors and partners, and the officers, directors,
employees, agents and representatives of each from all third-party claims and
costs (including reasonable attorneys’ fees) arising out of or related to: (1)
your use of the Services; (2) your conduct or interactions with other users of
the Services; (3) your breach of these Terms. We will notify you promptly of
any such claim and will provide you (at your expense) with reasonable
assistance in defending the claim. You will allow us to participate in the
defense and will not settle any such claim without our prior written consent.
We reserve the right, at our own expense, to assume the exclusive defense of
any matter otherwise subject to indemnification by you. In that event, you will
have no further obligation to defend us in that matter.
13.4 Interpretation. In construing or
interpreting the Terms & Conditions, headings are for convenience only, and
not to be considered.
13.5 Applicable Legislation. The use of our
website and the product purchase contracts through said website shall be
governed by the law of USA.
14.CONTACT US
We welcome your questions and comments
about our privacy practices or these terms. You may contact us anytime through
Customer Service Platform .