TERMS & CONDITIONS
IMPORTANT NOTICE FOR RESIDENTS IN THE UNITED STATES ONLY: THIS AGREEMENT AND YOUR USE OF OUR SERVICES IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW.
- GENERAL >
- USE OF OUR SERVICES >
- ERRORS >
- TRADE RULES >
- INTELLECTUAL PROPERTY AND OWNERSHIP >
- THIRD PARTY LINKS AND RESOURCES >
- TEXT MESSAGING PROGRAM >
- EVENTS BEYOND OUR CONTROL >
- LIABILITY FOR PURCHASED PRODUCTS, WAIVER, AND STATUTORY CONSUMER RIGHTS >
- LIMITATION OF LIABILITY >
- LEGAL DISPUTES AND ARBITRATION AGREEMENT FOR USERS IN THE UNITED STATES >
- LEGAL TERMS >
- COPYRIGHT INFRINGEMENT AND DMCA POLICY >
- BUSINESS TRANSFERS >
- CONTACT US >
1.1 Scope. Welcome to Totallyposhboutique.com. If you are located in the United States, theses Terms & Conditions ( “Agreement” or “Terms” ) are a contract between you and Totallyposhboutique. Ltd, as operator of the Site and App (as defined below), and Totallyposhboutique(the “Company” ), as the company that uses the Site and App to sell products to you, collect payment and process your returns (where applicable, “Totallyposhboutique ,” “we,” “us,” and “our” shall refer to Totallyposhboutique. Ltd. and/or Totallyposhboutique and “you” or “your” shall refer to the user of the Services (as defined below). These Terms govern your use of our website at Totallyposhboutique.com (the “Site,” which includes local versions of the Site, such as us.Totallyposhboutique.com), any mobile applications ( “Apps” ) that hyperlink to this Agreement, any other written, electronic, and oral communications with Totallyposhboutique and its affiliated entities, or any websites, pages, features, or content owned and operated by us that hyperlink to this Agreement (collectively, including the Site and Apps, the “Services” ).
Totallyposhboutique. Ltd operates the Services in the United States, but provides to regional affiliated entities the ability to use the Site or App (and associated Company intellectual property, trademarks, and marketing rights for Company products) in order to sell Company products to local customers. In the United States, the seller and payment collection entity is Totallyposhboutique.
You are only authorized to use the Services if you agree to abide by all applicable laws and to these Terms. If you reside in one country but order products to be shipped to another country, you may be redirected to the local Site of the country to which products are shipped. You will be subject to the Terms of that local Site.
1.2 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.
- 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. You represent and warrant that you are at least 16 years old or are visiting the Services under the supervision of a parent or guardian. Subject to the terms and conditions of this Agreement, Totallyposhboutique 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 us 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 us 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 us in advance. We reserve the right to refuse service, terminate accounts, and/or cancel orders in our discretion, including, without limitation, if we believe that your 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.
Additionally, you agree not to:
- use the Services for any unlawful purposes, or in a way 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 us or 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 manual or automated device, process, software or means to index or access the Services 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 a User 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 the Company 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. In no event shall we be liable for any loss, theft or fraudulent use of your User Account. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of the Site or App’s security. Please do not use the same password for this Site that you use for other sites.
The User Account is provided for the regional Site or App that is used for the initial setup (e.g., us.Totallyposhboutique.com). Depending on the Site through which you create your User Account, your account will be administered by the entity responsible for using that Site, as set forth in Section 1.1 Scope (for example, if you created your account on us.Totallyposhboutique.com, then your account will be administered by Totallyposhboutique). If you already have an account as of the Effective Date of these Terms, then depending on the location affiliated with your account, your account will be administered by the entity set forth in Section 1.1 Scope (for example, if your billing address is in the United States, then your account will be administered by Totallyposhboutique). If you reside in one country but order products to be shipped to another country, you may be redirected to the local Site of the country to which the products are shipped.
From time to time, we may restrict access to some or all parts of the Services, including, but not limited to, 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.
By creating an account with us, you acknowledge that we may send you promotional or marketing emails from time to time. If you do not wish to receive those emails, please use the link provided in those emails to unsubscribe from our email list.
(1) If you create a User Account, you will be provided with a Totallyposhboutique digital wallet ( “Wallet” ) that can be used to collect and hold wallet credits, gift cards, promotional coupons and promotional points issued by Totallyposhboutique via the Services. Wallet credits, gift cards, promotional coupons and promotional points stored in your Wallet can only be redeemed with Totallyposhboutique in connection with purchase of products from Totallyposhboutique, and not for any other purpose. The Wallet is accessible at any time via the local Site or App in the section “My Assets”. Your total assets, including wallet credit, gift cards linked to an account and coupons with a dollar value, cannot exceed $2,000 on any given day. In addition, we may further provide value limit to each of wallet credit, gift cards linked to an account and coupons with a dollar value at our sole discretion.
(2) Promotional Points: Promotional points can be earned and stored under “My Assets” by using our Services offered on your local Site, App or social media accounts and purchasing goods in accordance with the specific provisions available under Bonus Points . Promotional Points are granted in the Company’s sole discretion; they are subject to expiration and cancellation by the Company. Promotional points can only be redeemed on the site through which they were granted (for example, if promotional points were granted on the us.Totallyposhboutique.com site, then they can only be redeemed on that site).
Promotional coupons: Coupons can be purchased from the Company from time to time or may be granted by the Company in its sole discretion. Coupons may be stored under “My Assets.” Totallyposhboutique coupons that were purchased can only be redeemed on the site on which they were purchased (for example, if coupons were purchased on the us.Totallyposhboutique.com site, then they can only be redeemed on that site). The redemption of coupons granted by the Totallyposhboutique free of charge is subject to limitations imposed in Totallyposhboutique’s sole discretion from time to time.
Wallet Credit: Wallet credit can be stored in your Wallet by returning goods in accordance with our Returns Policy and choosing a store credit as your refund option. Once you elect to receive a wallet credit instead of a refund to the payment method used for your purchase, the store credit can no longer be refunded in cash, except as may be required under applicable law. Wallet credits can only be redeemed on the site through which the wallet credit was granted (for example, if you ordered and subsequently returned a product on the us.Totallyposhboutique.com site and elected to receive a wallet credit, that wallet credit can only be redeemed on that site).
Gift Cards: Gift cards can be redeemed and stored under “My Assets” by entering the gift card code through your User Account. Gift cards purchased on the U.S. Site, us.Totallyposhboutique.com, do not expire and are not subject to fees. For Totallyposhboutique gift cards that are purchased prior to March 8, 2021 and can be used on any Totallyposhboutique site, once any portion of such gift cards are redeemed on the U.S. Site, us.Totallyposhboutique.com , any balances on those cards can only be redeemed on the US Site. Gift cards purchased after March 8, 2021 can only be redeemed on the site on which they were purchased (for example, if a gift card was purchased after March 8, 2021 on us.Totallyposhboutique.com, then that gift card can only be redeemed on that site). The redemption of gift cards granted by the Company free of charge is subject to limitations imposed in the Company’s sole discretion from to time.
(3) You can use wallet credits, gift cards, paid or free promotional coupons and promotional points that are stored under “My Assets” as an additional payment option or discount to be used on the Site, subject to the applicable terms above and the provisions available under Bonus Points . Wallet credits, gift cards, paid or free promotional coupons and promotional points cannot be redeemed for cash, except as may be required under applicable law.
(4) The Wallet is provided as part of the User Account and is subject to the same provisions as set forth in Paragraph 2.3. If your Wallet holds promotional points, coupons or credits at the time of termination or cancellation of your User Account, you may lose those assets, except as provided by applicable law.
2.5 Customs. In accordance with Customs regulations, you must provide valid and accurate data. All consignee names, addresses and payer names should be valid. It is your sole responsibility that the data you provide to us is complete and accurate. Should any information be missing or be incorrect and prevent any shipment or deliveries or customs clearance, we will not be responsible and will not offer any compensation in such cases. You hereby authorize Company and its affiliates to make statements, submit, amend and invalidate all declarations and documents necessary or useful to import goods ordered by you in your name and for your account. This power of attorney includes the power to make and receive service and deliveries, request refunds of any levies, taxes and fees relating to the importation of goods, to conduct administrative appeal and court proceedings as well as enforcement proceedings and appeals and remedies at all instances, file applications, complaints, etc. with public authorities, courts and other institutions, file, withdraw and/or waive legal remedies and appeals against judgments, orders, arbitral awards, payment orders, or any other orders and decisions of whatever kind, receive monies, valuables and documents and/or deeds. It also includes the right to instruct customs agents in the name and on behalf of you and to grant sub-authorization to customs agents and/or other representatives involved in handling matters relating to the importation of goods and complying with regulations regarding the importation of goods. As the importer, you are responsible for complying with all laws and regulations in your own country.
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.
If you detect an error in your order after the completion of the payment process, you should immediately contact our Customer Service Platform to correct the error.
While we strive to provide accurate product and pricing information, pricing or typographical errors may occur. We cannot confirm the price of an item until after you placed your 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, we 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.
- TRADE RULES
5.1 Price and Payment. All prices are exclusive of sales and use tax and other taxes (where applicable) which will be charged to you separately at the applicable rate. 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 User Account or your original method of payment, whichever you so select.
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 and 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 bag. 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 How to Order . Also, if you are a registered user, a record of all the orders placed by you is available in “My Account”. If your order triggers a fraud alert in our security system, a verification email may be sent to your email address.
You may use the payment methods specified on the local Site, which may include Visa, Mastercard, JCB, Diners’ Club, Paypal, Klarna, Afterpay, Discover, Diners Club and online banking, etc. To minimize the risk of non-authorized 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 of your order.
When you click “Buy Now” or “Place Order” and “Continue”, or alike, you are confirming that the credit card is yours. Credit cards are subject to verification and authorization by the card issuing entity. If the entity does not authorize 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.
Please note single-day purchase limitations: For customers in the United States, if a purchase on a single day exceeds $800, duties may be imposed.
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, because the actual colors you see will depend on your monitor, we cannot guarantee that your monitor’s display of any color will be an accurate depiction of the color of the color of the product you selected to purchase.
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. We ship 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 90 business days, please contact our Customer Services Platform .
5.5 Title and risk of loss. Title to any purchased items transfers from the respective Company selling entity (i.e., Totallyposhboutique if you are in the United States) to you as the respective customer once the items are loaded onto the international carrier outside of your country. Because our delivery of your purchased item to the carrier shall constitute delivery to you, the risk of loss or damage shall pass on to you at the time we deliver your purchased item to the international carrier. Any claim you may have regarding damage to the item during shipping or delivery should be made directly to the carrier. Any claims against the Company for shortage or damage occurring prior to our delivery of the item to the carrier must be made within five (5) days after your receipt of the goods and must be accompanied by an original transportation bill signed by the carrier noting that the carrier received the goods from the Company in the condition claimed. To help protect buyers from risk of loss due to lost or damaged goods, we generally offer a shipping guarantee (insurance) on the Site for purchase.
5.6 Return of product. Goods can be returned within 45 days from the purchase date by notifying us of your decision to do so via the respective function of the Site or App. Based on your wishes, we will either exchange the product or refund you the purchase price and shipping cost (free shipping will only be available for one return per purchase order). The refund will be credited either to your Wallet within your User Account or your original method of payment at your election. If you choose a store credit, you will not able to redeem the store credit for cash, except as required under applicable law.
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 the Site or Apps, 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 intellectual property ( “IP” ) rights related thereto (excluding the moral rights such as authorship right) to the Company without charge and we 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 our sole and exclusive property and shall not be returned to you and you agree not to raise any dispute in connection with any use of the entry by us 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. We assume no liability for any misuse of copyright or any other rights of third parties by you. You undertake to defend and indemnify the Company against any losses caused due to the use of the Submissions 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 us 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 the Site and that use of your reviews, comments, or other content by us 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 us or third parties as to the origin of any Submissions or content. We 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.
- INTELLECTUAL PROPERTY AND OWNERSHIP
6.1 Content. The Services, including all of their 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 the Company or to those who grant us the license for their use and is protected by U.S. and international copyright laws. You may use the Content only to the extent that we or the usage licensers authorize expressly.
6.2 Totallyposhboutique Marks. In addition, the “Totallyposhboutique ” trademarks, service marks, icons, graphics, wordmarks, designs and logos contained therein ( “Marks” ), are owned by Totallyposhboutique. Ltd (and in some cases are provided to regional affiliated entities for their use in selling Company products to local customers). “Totallyposhboutique ” and the Marks of Totallyposhboutique 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 Totallyposhboutique Marks may not be used in connection with any product or service that is not the Company’s, in any manner that is likely to cause confusion among customers, or in any manner that discourages or discredits the Company. The 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, are not a representation that Totallyposhboutique . Ltd is the owner of any copyright or other intellectual property rights in the products offered for sale on the Site or the Apps. Totallyposhboutique . 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, broadcasted, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the Company 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 the Company.
You agree not to engage in the use, copying, or distribution of or create derivative works from any of the Content other than expressly permitted herein. You agree not to circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Site or the Content therein.
- THIRD PARTY LINKS AND RESOURCES
Our Site and Apps may contain links to third-party sites that are not owned or controlled by us. References on our Site and Apps to any names, marks, products or services of third parties, or links to third-party sites or information, are not an endorsement, sponsorship, or recommendation of the third party or its information, products, or services.
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, including, but not limited to, any third-party social media or mobile app platform with which the Services operate or otherwise interact. The Company is not responsible for the acts or omission of any operator of any such site or platform. Your use of any such third-party site or platform is at your own risk and will be governed by such third party’s terms and policies (including its privacy policies). 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.
- 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, which contain provisions that govern how claims you and we 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 [email protected] 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 U.S. 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.
- 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, pandemic 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 the Force Majeure lasted. We will provide all reasonable resources to end the Force Majeure to the extent we can or to find a solution that enables us to fulfil our obligations under the Terms despite the Force Majeure.
- LIABILITY FOR PURCHASED PRODUCTS, WAIVER, AND STATUTORY CONSUMER RIGHTS
10.1 Company Liability. Unless otherwise indicated expressly in these Terms, our liability regarding any product acquired on our Site 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 Site; (ii) are fit for the purposes for which goods of this kind are normally used; and (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.
- LIMITATION OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF TOTALLYPOSHBOUTIQUE TO YOU.
(1)BY USING THE SERVICES, YOU HEREBY ACKNOWLEDGE AND AGREE THAT WE ARE PROVIDING THE SERVICES, INCLUDING THE SITE AND APPS, ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL DEFAULTS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, AND TO THE EXTENT PERMITTED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND INCLUDING ANY WARRANTY OR CONDITION 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, WE 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, COMPANY 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.
- LEGAL DISPUTES AND ARBITRATION AGREEMENT FOR USERS IN THE UNITED STATES
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 [email protected] 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 (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, including, but not limited to, any claim that all or any part of the Terms 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 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 [email protected] . The notice must be sent within thirty (30) days of your agreement to the Terms, 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 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.
- 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.
No waiver of any term of the Terms 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 the Company 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, headings are for convenience only, and not to be considered.
13.5 Applicable Law. If you are a resident of the United States, your use of our Site and the product purchase contracts through said Site shall be governed by the law of the United States.
- COPYRIGHT INFRINGEMENT AND DMCA POLICY
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe that material located on or linked to by the Company violates your copyright, you are encouraged to notify us in accordance with the Digital Millennium Copyright Act. To do so, please send an email to [email protected] with the subject “DMCA Notice,” and include the following:
- identify the copyrighted work that you claim has been infringed along with any copyright registration;
- identify the material or link on our Services that you claim is infringing your copyrighted work;
- provide your full legal name, company affiliation, mailing address, telephone number, and email address; and
- include in the body of your notice the following statement, followed by your electronic or physical signature: ““I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. We will terminate a visitor’s access to and use of the Services if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of the Company or others. In the case of such termination, we will have no obligation to provide a refund of any amounts previously paid to us.
- BUSINESS TRANSFERS
We welcome your questions and comments about our privacy practices or these Terms. You may contact us anytime via email at [email protected] or through our Customer Service Platform .