These Terms of Service (this “Agreement”) constitute a legally binding contract between VSB OpCo, LLC, a Delaware limited liability company (“Popchips,” “we,” “us,” “our”) and you with respect to your use of our websites, mobile applications and online services, including without limitation our website accessible at www.popchips.com (collectively, the “Service”).
BY ACCESSING OR USING THE SERVICE, MAKING A PURCHASE USING THE SERVICE, OR BY OTHERWISE INDICATING YOUR ASSENT TO THIS AGREEMENT BY CLICKING “I ACCEPT,” OR ANY SIMILAR MECHANISM, YOU ARE CONSENTING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICE, MAKE A PURCHASE USING THE SERVICE, OR REGISTER AN ACCOUNT WITH POPCHIPS.
Be advised that this Agreement contains disclaimers of warranties and limitations on liability that may be applicable to you.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and Popchips have against each other are resolved (see Section 16 (Limitation of Liability), Section 20 (Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVER), and Section 21 (Choice of Law and Forum) below). It also contains an agreement to arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the agreement to arbitrate in accordance with Section 20(J). Unless you opt-out: (A) you will only be permitted to pursue claims against Popchips on an individual basis, not as part of any class or representative action or proceeding, and (B) you will be permitted only to seek relief (including without limitation monetary, injunctive, and declaratory relief) on an individual basis.1. Changes to this Agreement
We reserve the right to, at any time, with or without cause:
- change the terms and conditions of this Agreement;
- change the Service, including without limitation eliminating or discontinuing any service or other feature of the Service or using different URL(s) to provide the Service; and
- deny or terminate your use of and/or access to the Service.
You must accept all changes in order to continue to use and access the Service. Your access to or use of the Service after such changes constitutes your agreement to such changes. We will attempt to notify you of any material changes to the terms and conditions of this Agreement. If you do not accept such changes, your use and/or access to the Service will be terminated.
2. Use of the Service
We reserve the right to decline to provide the Service to any person for any or no reason. If and when you provide information to Popchips, you agree to: (A) provide accurate, current, and complete information as prompted (including without limitation your contact information), and (B) maintain and update your information to keep it accurate, current, and complete. By providing Popchips with your email address or other contact information, you consent to our use of this information to send you Service-related notices and other administrative notices, including without limitation any notices required by any applicable law, statute, rule, ordinance, code, order or regulation of any government or quasi-government authority (“Applicable Law”).
You represent and warrant that you have the full right, power, and authority to enter into and perform this Agreement without the consent or approval of any third party.
3. Rules Governing Your Use of the Service
You may not use the Service, or assist or encourage any other party to use the Service, to engage in any activity that Popchips deems objectionable, including without limitation any of the following prohibited activities:
- Copying, framing or mirroring any part of the Service;
- Accessing the Service for purposes of monitoring its availability, performance, or functionality;
- Using, copying, modifying, creating a derivative work of, reverse engineering, decompiling or otherwise attempting to extract the source code of the software underlying the Service or any part thereof, except to the extent expressly permitted or required by any applicable law, statute, rule, ordinance, code, order or regulation of any government or quasi-government authority (“Applicable Law”) provided that you first give prior written notice to Popchips;
- Attempting to disrupt, degrade, impair or violate the integrity or security of the Service or the computers, services, accounts or networks of any other party (including without limitation “hacking,” “denial of service” attacks, etc.), including without limitation any activity that typically precedes attempts to breach security such as scanning, probing or other testing or vulnerability assessment activity or engaging in or permitting any network or hosting activity that results in the blacklisting or other blockage of Popchips internet protocol space;
- Distributing or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
- Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to Popchips than a human can reasonably produce in the same period of time by using a conventional web browser;
- Taking any action that imposes, or may impose, as we determine in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- Accessing any content on the Service through any technology or means other than those provided or authorized by the Service;
- Bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein;
- Violating any Applicable Law or encouraging any conduct that could lead to such a violation, constitute a criminal offense or give rise to civil liability;
- Removing any copyright, trademark or other proprietary or intellectual property right notices contained in or on the Service; and/or
- Executing any form of network monitoring or running a network analyzer or packet sniffer or other technology to intercept, decode, mine or display any packets used to communicate between the Service’s servers or any data not intended for you.
Improper use of the Services may result in civil or criminal liabilities to you or the termination of access by us to the Services.
4. Intellectual Property
A. Your Rights. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Service solely for your own internal use. Popchips reserves all rights not expressly granted herein in the Service. Except as expressly set forth herein, no rights or licenses are granted to you under this Agreement, whether by implication, estoppel or otherwise.
B. Popchips Rights.
You must be 18 or older in order to purchase any product or service made available to you through the Service (“Products”). If you are under 18, you may use the Service only under the supervision of and with the involvement and authority of a parent or guardian that manages the account, and your parent and/or guardian agrees to be, and will be, held jointly and severally liable for any claims arising from you use of the Service. You agree that an order for Products is an offer to buy, under this Agreement, all Products listed in your order. All orders must be accepted by us or we will not be obligated to sell the Products to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the Products you have ordered. All orders are subject to our acceptance and Product availability. The appearance of Products displayed on any website within the Services may not exactly correspond to the actual Products in terms of image, dimensions, color or otherwise.
6. Prices and Payment for Products
Your total price for the Products will be stated on your purchase receipt and/or in a confirmation of your order by way of e-mail to the address you provide during the checkout process. Terms of payment are within Popchips’s sole discretion, and, unless otherwise agreed to by Popchips, payment must be received by Popchips prior to Popchips’s acceptance of an order for Products. We may use third-party service providers to process transactions on the Service and all payments for Products must be made in the manner specified by such third-party service providers. Any price offers or advertisements given by Popchips will be valid for the period stated on the offer or advertisement, with the exception that Popchips reserves the right to reject any sale at any time and for any reason, including without limitation for a misprint in the price offer or advertisement. Prices offered or advertised do not include shipping and handling or applicable sales taxes, which will be added to the price you pay.
Popchips may revise pricing for any Product or revise or discontinue any Product at any time. Popchips will deliver Products that have similar characteristics of the Products you ordered, but changes between what is delivered and what is described online are possible.
Refunds, for whatever reason, of any payment received by you will take place using the same method of payment you chose during the checkout process and cannot be amended after your order has been placed.
In the event a Product is listed at an incorrect price due to a typographical error, entry error, error in pricing information received from our suppliers, or other similar error, Popchips shall have the right to refuse or cancel any orders for such Products. Popchips shall also have the right to refuse or cancel any or all of your orders if we determine, in our sole discretion, that you are in breach of this Agreement. Popchips reserves the right to refuse or cancel any such orders whether or not the order has been confirmed. We will notify you of any cancellation and you will not be charged for any cancelled orders. Without limiting the provisions of Section 15 or 16, we do not warrant that any Product description or other information, material, or content accessible using the Service will be accurate, complete, reliable, current, or error-free. Your sole remedy for any claim arising from the purchase of any Product will be to return the Product for a full or partial refund in accordance with and to the extent permitted by Section
Popchips uses third-party fulfillment providers to arrange shipping of the Products to the address indicated in your order, in Popchips’s sole discretion. Popchips is unable to deliver to P.O. boxes. A description of such fulfillment providers’ shipping polices are set forth here: Shipping Policy.
All requests for returns will be reviewed in accordance with our fulfillment providers return policies: Return Policy.
9. Products Not for Resale or Export
You represent and warrant that you are buying Products from the Service for your own personal or household use only and not for resale or export.
Delivery from the Service is restricted to physical addresses in the United States. You represent and warrant that all purchases are intended for final delivery within the United States.
10. Third-Party Links
You hereby affirm that you are at least 18 years old and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement and to abide by and comply with this Agreement.
13. Term & Termination
This Agreement is effective from the date on which you first access the Service, place an order for Products, or submit any User Content to Popchips, whichever is earlier, and shall remain effective until terminated in accordance with its terms. Popchips may immediately terminate this Agreement, and/or your access to and/or use of the Service, or any portion thereof, at any time and for any reason, with or without cause, without prior notice. Popchips may also terminate this Agreement immediately if you fail to comply with any term or provision of this Agreement. Upon termination of this Agreement, your right to access and use the Service shall immediately cease and you shall cease all access to and use of the Service. In the event of termination of this Agreement for any reason, all of your payment obligations and Sections 1, 2, 3, 4(B)-(E), and 5–22 shall survive, except that you shall no longer have any right to access or use the Service.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part or portion thereof, with or without notice to you. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service, or any part or portion thereof. Nothing in this Agreement shall be construed to obligate Popchips to maintain and support the Service, or any part or portion thereof, during the term of this Agreement.
14. Product Suitability
Many states and localities have Applicable Laws governing sales, receipt and/or use of Products for certain purposes. Popchips cannot guarantee compliance and cannot be responsible for how the Product is received or used. Before purchase, receipt and/or use of any Product, please review such Applicable Laws to be sure that the Product, and receipt and use thereof, will comply with such Applicable Laws.
THE SERVICE AND PRODUCTS ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES THAT THE SERVICE IS CURRENT AND/OR UP-TO-DATE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THERE IS NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT THE SERVICE, OR YOUR USE OF THE SERVICE, OR ANY INFORMATION, MATERIAL, OR CONTENT ACCESSIBLE USING THE SERVICE, WILL BE UNINTERRUPTED, COMPLETE, ACCURATE, CURRENT, RELIABLE, ERROR-FREE, SECURE, OR THAT ANY PROBLEMS WILL BE CORRECTED, OR THAT THE SERVICE, OR ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE FROM THE SERVICE, IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATION REGARDING THE USE OF, OR THE RESULTS OF THE USE OF, THE SERVICE AND YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE AND YOUR RELIANCE THEREON.
16. Limitation of Liability
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, NEITHER POPCHIPS NOR ANY OF ITS AGENTS, SUCCESSORS, OR ASSIGNS, NOR OUR OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, LOST SAVINGS, OR LOSS OF DATA) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY MANNER TO THE SERVICE, PRODUCTS, OR ANY LINKED WEBSITE, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. POPCHIPS’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES AND/OR LIABILITIES, SO CERTAIN OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to fully indemnify, defend (at Popchips’s request), and hold harmless Popchips, our agents, successors, and assigns, and our and their directors, officers, employees, consultants and other representatives (collectively, the “Popchips Parties”) from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from: (A) your actual or alleged breach of this Agreement; (B) any allegation that any User Content or other materials you submit to us or transmit to the Service infringe, misappropriate, or otherwise violate the copyright, patent, trademark, trade secret or other intellectual property or other right of any third party; (C) your activities in connection with the Service or any other website to which the Service is linked; (D) your negligence or willful misconduct; (E) your use of the results, content, data, or information provided via the Service; (F) any service or product offered by you in connection with or related to your use of the Service; and/or (G) your violation of any Applicable Law.
18. Jurisdictional Issues
Popchips makes no representation that the Service operates (or is legally permitted to operate) in all geographic areas or that the Service is appropriate or available for use in other locations. Accessing the Service from territories where the Service or any content or functionality of the Service or portion thereof is illegal is expressly prohibited. If you choose to access the Service, you agree and acknowledge that you do so on your own initiative and at your own risk and that you are solely responsible for compliance with all Applicable Laws. The Service is operated from the United States. If you are located outside of the United States and choose to use the Service or provide your User Content to us, your User Content will be transferred, processed, and stored in the United States. U.S. privacy laws may not be as protective as those in your jurisdiction. Your agreement to the terms of this Agreement or your submission of your User Content in connection with the Service represents your agreement to this practice. If you do not want your User Content transferred to or processed or stored in the United States, you should not use the Service.
19. Notice for California Users
Under California Civil Code Section 1789.3, California Service users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
20. Dispute resolution and arbitration: MANDATORY BINDING INDIVIDUAL ARBITRATION INSTEAD OF COURT; CLASS ACTION WAIVE
A. Binding Arbitration. You and Popchips both agree that any and all disputes or claims arising out of or relating in any way to Popchips products or services, including without limitation Products, or from any advertising for any such products or services, including without limitation any question regarding the existence, validity, or termination of the Agreement as well as any issue regarding the interpretation of this Section 20, will be resolved by binding arbitration before a sole arbitrator (rather than in court), except that you may assert claims in small claims court if your claims qualify and Popchips may pursue a collection action against you in court. This also includes any claims that arose before you accepted the Agreement, regardless of whether prior versions of the Agreement required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement.
B. Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including without limitation injunctive and declaratory relief or statutory damages) and must follow the terms of the Agreement as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.
C. Notice. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to Popchips, by certified mail, a written notice of your claim that (i) describes the nature and basis of the claim or dispute; (ii) sets forth the specific relief sought; and (iii) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to: 600 Playhouse Alley, Suite 400, Pasadena, CA 91101 (“Notice Address”). You may download or copy a form Notice at www.adr.org. If Popchips and you do not reach an agreement to resolve the claim within sixty (60) days after the Notice is received, you or Popchips may commence an arbitration proceeding or file a claim in small claims court.
D. Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.
E. Consumer Arbitration Rules. The arbitration will be governed by the AAA’s then current Consumer Arbitration Rules, as modified by the terms of the Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between the terms of the Agreement and the AAA Consumer Arbitration Rules, the terms of the Agreement will apply.
F. Fees. Each party will bear its own fees in connection with the arbitration, including without limitation the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.
G. Hearings. If your claim is for US$25,000 or less, you and Popchips agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. You may also request an in-person hearing, which the arbitrator may grant at his or her discretion. If the arbitrator grants an in-person hearing, such hearing will be conducted either at a mutually agreed location or a location determined by the AAA or the arbitrator. In such an in-person hearing, the parties, or any of their witnesses, have the right to participate remotely by way of videoconference or some similar means. If your claim exceeds US$25,000, the right to a hearing will be determined by the arbitrator. All in-person hearings will be held in Los Angeles County, California.
H. No Class Action. You and Popchips agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor Popchips may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.
I. Confidentiality. Any arbitration will be confidential. Neither you, Popchips, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by Applicable Law or for purposes of enforcing or challenging of the arbitration award.
J. Opt-Out. You may opt out of this dispute resolution procedure by providing written notice to Popchips at the Notice Address no later than thirty (30) calendar days from the date of your purchase of Popchips products or services (or date of first use, in the case of free products or services). Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of the Agreement or your ability to purchase or use Popchips products or services in any way.
K. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Popchips and this Agreement must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
21. Choice of Law and Forum
Without limiting Section 20 this Agreement and your relationship with Popchips Parties shall be governed by, and construed and interpreted in accordance with, the Federal Arbitration Act, applicable federal law, and the laws of the State of California without regard to conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to Section 20, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts located in Los Angeles County, California, and you consent to the exclusive jurisdiction of the federal or state courts located in Los Angeles County, California.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. This Agreement may not be changed, waived or modified except by Popchips posting such changes, waivers or modifications within the Services. If any employee of Popchips offers to modify this Agreement, he or she is not acting as an agent for Popchips or speaking on Popchips’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of Popchips or anyone else purporting to act on Popchips’s behalf. This Agreement is between you and Popchips; there are no third-party beneficiaries. You are responsible for compliance with all Applicable Laws, including without limitation United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither this Agreement nor any right, obligation or remedy hereunder is assignable, transferable, delegable or sublicensable by you except with Popchips’s prior written consent, and any attempted assignment, transfer, delegation or sublicense shall be null and void. Popchips may assign, transfer or delegate this Agreement or any right or obligation or remedy hereunder in its sole discretion. Popchips shall not be in breach of this Agreement nor liable for any delay in performing, or failure to perform, any of its obligations under this Agreement, if such delay or failure result from events, circumstances or causes beyond its reasonable control. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served, in the case of Popchips, at email@example.com Attention: Marketing Department or, in your case, to contact information you choose to provide us. Notice to you shall be deemed given 24 hours after the e‑mail is sent. Any heading, caption or section title contained in this Agreement is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
Last updated on November 9, 2020