Must Have Terms of Service and Terms of Sale
Effective November 17, 2015
POPSUGAR Inc., its subsidiaries and affiliates ("POPSUGAR," "we," "us," "our") owns and operates the POPSUGAR Must Have Services. The Must Have Services (the "Services") shall include, without limitation, use of the POPSUGAR Must Have website, purchase of a Must Have Box and/or Subscription (defined below), including the goods and/or services included therein and any additional goods or services POPSUGAR performs for you via the POPSUGAR Must Have Services.
TERMS AND SERVICES MAY BE MODIFIED AT ANY TIME
POPSUGAR reserves the right, in its sole discretion, to modify these Must Have Terms at any time by posting a notice on the POPSUGAR website at http://musthaveblog.popsugar.com, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Continued use of the Services by you following such notice constitutes your acceptance of these Must Have Terms as modified.
POPSUGAR may change, suspend or discontinue the Services at any time. POPSUGAR may also impose limits on certain features and Services or restrict your access to parts or all of the Services.
REGISTRATION FOR CERTAIN SERVICES
You will be required to register with your email address ("Must Have User ID") and select a password to use certain Services. You may not (i) use a name or email of another person with the intent to impersonate that person. You shall provide POPSUGAR with accurate, complete, and updated registration information. You shall be responsible for maintaining the confidentiality of your password. Any failure to comply with this provision may result in immediate termination of your account. POPSUGAR reserves the right to refuse registration of, or cancel a user account in its discretion. If you begin to register for Services or purchase a Subscription by providing your information on the Must Have website but do not complete your registration or purchase, we may retain your name and email address and send you an email to remind you complete your registration or purchase, or to provide you with additional offers or details related to the Services. You can opt-out of receiving these emails by clicking the "unsubscribe" link in the email or by contacting us at firstname.lastname@example.org.
YOU ARE PURCHASING AN AUTO-RENEWAL SUBSCRIPTION
Unless you are purchasing a stand-alone Special Edition or Gift Collection Box or a one-time Gift Subscription for someone else, all Subscriptions automatically renew as described below unless cancelled in accordance with these Must Have Terms - See CANCELLATION OF YOUR AUTO-RENEWAL SUBSCRIPTIONS below.
Through the "Must Have" program, you may purchase a subscription to receive monthly shipments of curated items and/or single purchase premium edition offerings POPSUGAR may provide from time to time (each, a "Box"). In addition, POPSUGAR may offer certain premium edition offerings, which include Special Edition and Gift Collection Boxes that are available for stand-alone purchase. The various subscription types available (each, a "Subscription"), and the pricing for each, are described here: http://musthaveblog.popsugar.com/about. Subscriptions are available in a variety of lengths (each, a "Subscription Term").
Initial Order. Your Subscription will begin depending on which Box is available for sale at the time of your initial order. For example, in the month of January, either the January Box or February Box will be available for purchase. If you purchase the current month's Box, your Subscription will begin in that current month and your first Box will ship within five (5) to ten (10) business days from your initial purchase. Alternatively, if you purchase a February Box during the month of January, your Subscription will begin the month of February, and your first Box will ship by the twentieth (20th) day of February.
Wait List. During the sign-up process for a Must Have Subscription you might receive the unfortunate news that Boxes for the current month, next month or the next few months are already sold out. You will automatically be place on our Must Have Wait List. For example, if you sign-up for a Subscription in January and learn that the next available month's Box is not until April, your name will be automatically placed on our Must Have Wait List to receive the earlier of a January, February or March Box should one become available. If you do move from the Must Have Wait List and become an active customer, your purchased Subscription will commence at that time. POPSUGAR makes no representation whatsoever that a Box for any given month may become available. Must Have Wait List orders will be fulfilled automatically to the extent inventory should become available. POPSUGAR will alert you by email of the fulfillment of a Box for an earlier month and your account information will be updated to reflect the earlier month's Box as your first shipment. Once you are on our Must Have Wait List, you agree that POPSUGAR may fulfill the order and charge the credit card on file at the time of Subscription sign-up, regardless of which month's Box the participant ultimately receives for his or her first month. However, at no time will the month of the first Box that you receive be later than the one posted on the Subscription order page at the time of sign-up. By being on the Must Have Wait List you are not guaranteed to receive a Box for an earlier month. A Must Have Wait List may remain active for any length of time and may be closed by POPSUGAR at any time with or without advance notification to you. This Wait List is not applicable for Gift Subscriptions.
Auto-Renewing Subscriptions. After your initial order and receipt of your first Box, POPSUGAR expects to ship subsequent monthly Boxes prior to or on the 20th of each calendar month, or the following business day if the projected shipment date is a holiday.
- Month-to-Month: If you have chosen a monthly recurring Subscription type ("Month-to-Month Subscription"), for your first month POPSUGAR will charge you the relevant monthly Subscription fee at time of sign-up. For each subsequent month, you will be charged before your order is shipped.
- Long-Term Subscription: If you have chosen a Subscription of longer than one month, for example, a 3-Month Subscription ("Long-term Subscription"), the fee for the entire Subscription Term will be charged to you upon the sign-up of your Long-term Subscription. Subscription Term length cannot be changed until the Subscription Term is up for renewal in accordance with CANCELLATION OF YOUR AUTO-RENEWAL SUBSCRIPTIONS section below. On the last month of the Subscription Term, if the Long-term Subscription is not cancelled, the Subscription will convert to a Month-to-Month Subscription beginning on the subsequent month after the end of the Subscription Term.
Gift Subscriptions. You may purchase and designate a purchase of a stand-alone Box or any Subscription as a "gift" for someone else during your order process ("Gift Subscription"). A Gift Subscription does not automatically renew and will terminate at the end of its initial Subscription Term. There is no wait list for Gift Subscriptions.
CANCELLATION OF YOUR AUTO-RENEWAL SUBSCRIPTIONS
At the end of a Subscription Term, your Subscription will automatically renew for additional one-month Subscription Term(s), unless you log in to your Must Have account and cancel your Subscription at any time prior to the twenty-third (23rd) day of the month. For example, should you log in to cancel your Subscription on January 23rd, you will not incur any charges for the month of February, thereby ending your then-current Subscription Term in January. Should you log in and cancel your Subscription on January 25th, you will be charged and receive the February Box and then your Subscription Term ends in February.
If you have a Long-Term Subscription, your Subscription will be up for renewal as of the last month of the Long-Term Subscription unless you cancel by the twenty-third (23rd) day of that month. For example, if you have a 3-Month Subscription commencing in January and have received a January Box, you must log in to cancel your Long-Term Subscription by March 23rd to not incur a charge in April and receive the April Box. You will not be renewed for another Long-Term Subscription; in the example above, you will be automatically renewed and your Subscription then converts to a Month-to-Month Subscription in April.
POPSUGAR may limit quantities of or cancel Subscriptions purchased, and we reserve the right to refuse any order. In the event POPSUGAR needs to change or cancel an order, we will attempt to notify you using the contact information you provided at the time the order was made.
YOU MUST PROVIDE ACCURATE INFORMATION
POPSUGAR will charge the relevant fees for your chosen Subscription(s) to the credit card that you provide to us. Any updates to your account (i.e. shipping and billing information) must be made prior to the twenty-third (23rd) day of each calendar month for the updated details to apply to the subsequent month. If the credit card information you have provided is incorrect or incomplete, or POPSUGAR is unable to complete a transaction due to your error or omission, we will attempt to contact you and inform you of the problem. Failure to provide accurate and complete shipping and billing information may result in the delay or cancellation of your Subscription or a particular delivery. If you believe you have purchased a Subscription in error, please contact us immediately at email@example.com.
PRICING MAY CHANGE
POPSUGAR reserves the right to change the prices and available Subscriptions at any time, upon notice to you, provided that any Subscription you have already paid for as of the date of such notice will not be affected by such change for the then-current Subscription Term. For avoidance of doubt, the Subscription Term of a Month-to-Month Subscription is one (1) month. Prices displayed on the Services are quoted in U.S. currency and are valid only in the United States. Sales tax will be determined by the shipping address of the order and will automatically be added to your order in accordance with the current tax rate at time of charge. We do not collect sales tax in all states, only those where we are required to do so, or become required to do so by law in the future.
USE OF PROMOTIONAL CODES
POPSUGAR may, from time to time in its sole discretion, offer certain promotional codes for discounts. Promotional codes are non-transferable and are not redeemable for cash, credit, or toward previous purchases. There is no cash alternative. Furthermore, promotional codes cannot be used in conjunction with any other offer or promotional discount, and must be redeemed by the date published, if provided. Any promotional code may only be used in accordance with the terms provided with that promotional code or on the Must Have website. Lost promotional codes cannot be replaced. Promotional codes will not be applied to subsequent automatically renewed transactions. Promotional codes are void where prohibited. Any promotional program may be terminated or modified by POPSUGAR at any time in its sole discretion.
NO RETURNS OR SUBSTITUTIONS
The contents of each Box are curated by the trendsetters at POPSUGAR. We do not allow returns or substitutions of anything in your Box. Should POPSUGAR decide to honor a return as determined in its sole discretion, we will either send you a pre-paid label to return the Box and deduct the cost of shipping from your refund amount, or we will request that you return the Box using your preferred shipping method at your expense. All refunds are issued in the original form of payment for all purchases. Boxes are shipped by a third party carrier. As a result, title and risk of loss for a Box will pass to you upon our delivery to the carrier.
DAMAGED OR INCOMPLETE CONTENTS
If you receive a Box with damaged or incomplete contents, please contact us at firstname.lastname@example.org within three (3) weeks following shipment of your Box. If you receive a Box with damaged contents you will need to include photographic evidence documenting the damaged product in order to receive a replacement product.
REFERRAL CREDITS AND OTHER CREDITS
POPSUGAR may provide you referral credits ("Referral Credits") when you invite your friends to sign-up for certain types of POPSUGAR accounts ("Credit-Eligible Accounts", which shall not include Gift Subscriptions). Referral Credits may be awarded to you when your friends join and make their first purchases of a Subscription. Referral Credits are granted in POPSUGAR's sole discretion. In order for you to be eligible to receive Referral Credits for friends creating new Credit-Eligible Accounts, the new friend must create a Credit-Eligible Account via the unique referral link POPSUGAR provides to you and make a purchase of a Subscription, as applicable. You will not share your unique referral link in any public forum or with third parties you do not know (including without limitation, on any coupon site). Referral Credits are loyalty or promotional discounts or credits offered by POPSUGAR, and do not constitute an account, a payment instrument or other property owned by any POPSUGAR user. You may only use Referral Credits in connection with a qualifying Subscription (as that term is defined in the Terms of Sale applicable) purchase from POPSUGAR on a Credit-Eligible Account. In connection with any Must Have premium edition box that POPSUGAR may offer from time to time, you are eligible to earn Referral Credits, but will not be able to apply such credits toward purchase of a Must Have premium edition box, including but not limited to a Must Have Special Edition Box or Gift Collection Box. POPSUGAR reserves the right to revoke your Referral Credits if it determines that you have engaged in fraudulent referral activity (e.g. inviting fake people to create Credit-Eligible Accounts) or otherwise violated the Agreement, or if POPSUGAR terminates your membership. If your account has not been active for six (6) consecutive months, any Referral Credits you may have earned will expire at that time.
When you have earned three (3) Referral Credits, you will receive one (1) free Must Have Box ("Referral Bonus Box") subject to your having an active account. For each additional Referral Credit you earn thereafter, you will receive a ten dollar ($10) credit ("Ten Dollar Off Reward") towards the purchase of your next Must Have Box. Only one Ten Dollar Off Reward may be applied towards a purchase of a Must Have Box in any given month per active Subscription. If you have two active Subscriptions, one credit may be applied whether in the form of a Ten Dollar Off Reward or Referral Bonus Box to each of your active Subscriptions in the same month.
Referral Credits and Ten Dollar Off Rewards are not available towards the purchase of premium edition boxes, including but not limited to Must Have Special Edition Box(es) or Gift Collection Box(es), or Gift Subscriptions. POPSUGAR reserves the right at any time without notice to you to change the terms applicable to the Referral Credits and Ten Dollar Off Rewards, including expiration period and/or your ability to redeem existing Referral Credits and Ten Dollar Off Rewards. Any Referral Credits earned prior to November 13, 2015 are no longer valid, however any Referral Bonus Box earned prior to November 13, 2015 will still be applied to your account.
If you have other credits provided by POPSUGAR, whether a credit applicable as paid by you at the time of initiating a Subscription or selecting an upgrade ("Paid Credits") or a credit applied by POPSUGAR's customer service at POPSUGAR's sole discretion ("Customer Service Credits" and together with the Paid Credits, Referral Credits and Ten Dollar Off Reward, the "Credits"), your Credits will be applied in the following order: (1) Referral Credits, (2) Customer Service Credits, (3) Paid Credits, and (4) Ten Dollar Off Rewards. Credits are not transferable or sellable, are not gift cards, have no cash value, are not cash equivalents, and cannot be redeemed for cash or cash equivalents. You may not sell, give, or otherwise transfer your Credits to any other account, individual or POPSUGAR user.
DISCLAIMER OF WARRANTIES
Product specifications and other information have either been provided by the vendors or collected from publicly available sources. While POPSUGAR makes reasonable efforts to ensure that the information on the Must Have website and/or contained in your Box is accurate, we can make no representations or warranties as to the accuracy or reliability of any information provided on the Must Have website and/or contained in your Box. POPSUGAR makes no warranties or representations whatsoever with regard to any product provided or offered by any vendor, and you acknowledge that any reliance on representations and warranties provided by any vendor shall be at your own risk. Moreover, POPSUGAR disclaims any responsibility in connection with your use of the contents contained in each Box, any and all such use shall be at your own risk.
MUST HAVE SWEEPSTAKES
POPSUGAR may, from time to time in its sole discretion, elect to conduct a drawing to randomly select potential prize winners who will be eligible to receive a special prize to be included in a Box prior to shipment (a "Must Have Sweepstakes"). NO PURCHASE IS NECESSARY TO ENTER OR WIN. ODDS OF WINNING WILL DEPEND ON THE TOTAL NUMBER OF MUST HAVE SUBSCRIBERS. VOID WHERE PROHIBITED BY LAW OR WHERE BONDING, REGISTRATION, OR OTHER REQUIREMENTS WOULD BE REQUIRED BUT HAVE NOT BEEN MET. AFFIDAVIT OR DECLARATION OF ELIGIBILITY AND RELEASE OF LIABILITY FORMS MAY BE REQUIRED. Only Must Have Subscription holders who are at least eighteen (18) years of age and who are permanent, legal residents that reside in one of the fifty (50) states of the United States of America or the District of Columbia are eligible. Any Must Have Subscription holders who are employees of POPSUGAR are ineligible to receive a prize. Notwithstanding the foregoing, you do not have to be a Must Have Subscription holder to be eligible to receive a prize. On a plain 3" x 5" index card, legibly handprint or type your first name, last name, date of birth, complete address, city, state, zip code, home phone number (including area code), and email address (if any) and mail your completed 3" x 5" card to: "POPSUGAR Inc. Must Have Prize Sweepstakes" POPSUGAR Inc., 111 Sutter Street, Suite 850, San Francisco, CA 94104 (the "Alternative Method of Entry"). You need only send in one card to be eligible for any Must Have Sweepstakes. Regardless of method of entry, there is a limit of one (1) entry per person. Prior to shipment of the Boxes for a given month, POPSUGAR will conduct a drawing to select the potential prize winners who shall be randomly selected from all Must Have Subscription holders and entries from the Alternative Method of Entry. All winners of a prize shall be responsible and liable for all federal, state and local taxes on the value of their prize. The decisions of POPSUGAR are final and binding in all matters relating to any Must Have Sweepstakes. POPSUGAR reserves the right, in its sole discretion and without notice, to suspend or cancel any Must Have Sweepstakes.
RELEASE OF CLAIMS
You hereby release POPSUGAR, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of (i) your use of the Services, or (ii) any disputes with any third party and our Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
YOU ARE AGREEING TO BINDING ARBITRATION
Certain portions of this Arbitration section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act. You and POPSUGAR agree that we intend that this section satisfies the "writing" requirement of the Federal Arbitration Act.
You and POPSUGAR agree to arbitrate any and all disputes or claims arising out of, in connection with, or relating to use or purchase of the Services or any aspect of the relationship between you and POPSUGAR. This includes agreeing to arbitrate claims that arose before this Agreement came into effect and any claims that may arise after termination of this Agreement. The arbitration shall be conducted in accordance with the American Arbitration Association ("AAA") Consumer Arbitration Rules then in effect. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE THAT (I) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (II) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; AND (III) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS. If the specific provision of this paragraph is found to be unenforceable, then the entirety of the Agreement titled "BINDING ARBITRATION" shall be null and void.
Arbitration is a method of claim resolution that is less formal than a traditional court proceeding. It uses a neutral arbitrator instead of a judge or jury and is subject to limited review by courts. YOU AGREE TO WAIVE YOUR RIGHT TO A JURY TRIAL AND UNDERSTAND THAT, ABSENT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL POPSUGAR OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $100; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND POPSUGAR'S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
WAIVER AND SEVERABILITY
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. POPSUGAR shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond POPSUGAR's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including "line-noise" interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
GOVERNING LAW AND CHOICE OF FORUM
This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws provisions thereof. Subject to the arbitration provision and for all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
You and POPSUGAR agree that this Agreement (including any terms or policies expressly incorporated herein) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
If there is any conflict between the Must Have Terms and the POPSUGAR Terms, the Must Have Terms will govern. All capitalized terms that are not defined herein have the meaning specified in the POPSUGAR Terms.
NO AGENCY; NO ASSIGNMENT
This Agreement is not assignable, transferable or sublicensable by you except with POPSUGAR's prior written consent. POPSUGAR may transfer, assign or delegate this Agreement and its rights and obligations without consent. Headings for each section have been included for your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind POPSUGAR in any respect whatsoever.
SURVIVAL OF TERMS
All provisions of the Agreement, which by their nature are intended to survive performance hereof by you or POPSUGAR, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability, shall survive the completion of the performance, cancellation or termination of this Agreement.
CONTACT US WITH QUESTIONS
Should you have any questions regarding these Must Have Terms you may contact us at ATTN: Must Have Team, POPSUGAR Inc. 111 Sutter Street, Suite 850, San Francisco, California, 94104 or by email at email@example.com.