GLOW by POPSUGAR
TERMS OF SERVICE AND TERMS OF SALE
Effective September 23, 2019
POPSUGAR Inc., together with its subsidiaries and affiliates (“POPSUGAR,” “we,” “us,” “our”), owns and operates the GLOW by POPSUGAR service (the “Service” or “GLOW”) which includes, without limitation, use of the GLOW website, platform, applications, and any successor or related site(s), application(s) and/or Products or purchase of any Product (as defined below) through the Service.
By browsing, accessing or using any part of the Service, including, without limitation, purchasing a Product or offering a Product for sale, you agree to be bound by the following terms and any other purchase terms or policies made available on the Service that apply to you, all of which are incorporated herein by reference (together, the “Agreement”):
Your use of the Service is expressly conditioned upon your assent to all of the terms and conditions of this Agreement to the exclusion of all other terms. If you do not agree to any of these terms and conditions, then please do not use the Service.
Please note that (1) the section below entitled YOU ARE AGREEING TO BINDING ARBITRATION contains an arbitration clause and class action waiver. By agreeing to these GLOW Terms, you agree to resolve all disputes through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions, class arbitrations, or representative actions; and (2) the section below entitled NEW JERSEY RESIDENTS contains an important message to residents of New Jersey.
TERMS AND SERVICE MAY BE MODIFIED AT ANY TIME
POPSUGAR reserves the right, in its sole discretion, to modify these GLOW Terms at any time by posting a notice on the GLOW website at https://GLOW.shop, or by sending you a notice via email. You shall be responsible for reviewing and becoming familiar with any such modifications. Continued use of the Service by you following such notice constitutes your acceptance of these GLOW Terms as modified. POPSUGAR may change, suspend or discontinue the Service or any portion of the Service at any time. POPSUGAR may also impose limits or additional terms on certain features, Products and/or the Service or restrict your access to parts or all of the Service.
You must be eighteen (18) years old or older to use the Service as a Seller.
You must be sixteen (16) years old or older to use the Service other than as a Seller; provided, however, if you are under eighteen (18) years old, you may only use the Service as a Buyer and purchase through an account registered and owned by your parent or legal guardian and only with the permission and under the direct supervision of your parent or legal guardian. If you believe that a child under age sixteen has used the Service and provided us with any information, please contact us at firstname.lastname@example.org.
You will be required to register for an account (“Account”) with a username and email address, and select a password to use certain features of the Service, including purchasing any Product or offering any Product for sale. You may not 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 are 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. Accounts may not be shared or transferred.
The person whose billing information is on the Account is solely responsible for maintaining the security of their Account, and shall be responsible for all activity that takes place on that Account. You must notify POPSUGAR immediately if you suspect any unauthorized access to or use of your account. If you are registering for an Account as a business entity, the Account must be in the name of the business entity, and you personally guarantee and represent to POPSUGAR that you have the right and authority to agree to these GLOW Terms on behalf of such business entity.
TERMINATION OF ACCOUNT
POPSUGAR may terminate or suspend your Account (and any related Accounts) and/or your access to the Service or any Products at any time, for any reason, and without advance notice. You may terminate your Account at any time through your Account settings. Please note if you are a Seller (as defined below) that termination of your user Account will also delete your Seller shop. Termination in any case will not affect your obligation to pay any outstanding bills or fees owed by you.
CONTENT ON THE SERVICE & LICENSES
As between you and POPSUGAR, and subject to the license below, you own all right, title and interest in and to all content and materials that you post to the Service, including, but not limited to, Content Products (defined below), Seller shop materials (such as text, audio, photographs, images, or audiovisual materials posted by you as a Seller, and including any incorporated branding and logos), Seller shop policies, and/or your user comments, direct messages and other communications posted or sent on, through or in connection with the Service (“User Content”). POPSUGAR does not acquire ownership of your User Content. You are solely responsible for your User Content, and represent and warrant to POPSUGAR that you have all necessary rights to your User Content, and that your use (and, where applicable, uploading and offering for sale) of any User Content shall not violate or infringe the rights of any third party, including, but not limited to, any copyright, trademark, trade secret, rights of privacy or publicity, or other personal or proprietary right. Your User Content posted by you to the Service (including all Content Products in your Seller shop) must not be abusive, offensive, threatening, defamatory, misleading, deceptive or fraudulent, and must comply with our Guidelines.
By posting User Content on the Service (which includes offering Content Products for sale as a Seller), you grant to POPSUGAR a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, edit, modify, reproduce, host, display, distribute, publicly perform, and prepare derivative works of such User Content in connection with the Service, including, but not limited to, display, distribution and/or transmission of such User Content on the Service, facilitating transactions on your behalf (as a Buyer or Seller) on the Service, for advertising and promotion of the Service, your User Content and/or POPSUGAR in any format, advertising medium and through any channels, and for POPSUGAR’s internal business purposes (such as to understand our audience and to improve the Service). You agree not to assert any moral rights or rights of publicity against POPSUGAR for using User Content in accordance with this Agreement.
As between you and POPSUGAR, POPSUGAR owns all right, title and interest in and to the Service, including, but not limited to, all features of the Service and all branding incorporated therein, but excluding any User Content. You agree that you will not violate any applicable laws, rules or regulations in connection with your use of the Service, including, but not limited to, in connection with providing any User Content (as defined below). POPSUGAR reserves the right to remove or block any User Content (including Content Products) at any time for any reason, including User Content that violates the Agreement, including any applicable POPSUGAR policies.
SELLERS AND BUYERS OF PRODUCTS
If you use the Service to offer one or more Products for sale, you are considered a “Seller” on the Service, and the policies set forth in the Additional Terms and Policies for Sellers apply to you. If you use the Service to browse, shop or purchase Products, you are considered a “Buyer” on the Service, and the policies set forth in the section above entitled Additional Terms and Policies for Buyers apply to you. For purposes of clarity, you may be both a Seller and a Buyer if you offer Products for sale on the Service and also browse or make purchases on the Service.
Sellers may offer digital media content to Buyers to be purchased or licensed through the Service on a (i) stand-alone basis (in a single piece or as a set of content), including content such as workout videos and downloadable non-video content such as meal plan PDFs or (ii) as a subscription videos and/or non-downloadable non-video content (also referred to on the Service as “Plans”), which consist of content offerings on a subscription basis, which will be offered to Buyers as a monthly, auto-renewing subscription that may be cancelled at any time in accordance with the Additional Terms of Sale for Buyers (“Subscriptions”).
In addition to the digital Products described above (“Content Products”), Sellers may offer certain physical goods for sale on the Service (“Physical Products”). Content Products (including Subscriptions) and Physical Products are referred to herein collectively as “Products.” Certain Products and features of the Service may only be available on the Service website and not within the mobile application(s) or third-party platform(s). Similarly, certain Products and features of the Service may only be available within the mobile application(s) or third-party platform(s), and not on the Service website.
Generally, the Seller who operates a particular Seller shop is considered the Seller for purposes of these GLOW Terms. However, in certain cases, Products on the Service are clearly labeled as being offered by POPSUGAR (and not another Seller). These are “POPSUGAR Products” sold by POPSUGAR.
For single-piece Content Products or sets of Content Products, after paying the stated fee (set by the Seller), a Buyer may stream the Content Product(s) (for video) or download the Content Product(s) (for non-video), an unlimited number of times. For Subscriptions, in exchange for a recurring monthly fee (set by the Seller), the Buyer may stream (for video content) or download (for non-video content) the Subscription Content Products an unlimited number of times during the Subscription period. For Physical Products, Sellers are responsible for shipping the Physical Product to Buyers after the Buyer pays the stated fee set by the Seller.
COMMUNICATION THROUGH DIRECT MESSAGING
Buyers and Sellers may send each other direct messages using the built-in messaging system through the Service. Direct messaging can be accessed and initiated by the Buyer on the Seller’s shop or profile page via the “Message” button. For Sellers, messages can be viewed through their profile dropdown menu. Messaging is the best way for Buyers and Sellers to communicate regarding a Product or order and resolve any disputes that Buyers and Sellers have with one another. However, messaging may not be used for the following activities:
DISPUTES BETWEEN USERS
You agree to resolve any dispute with another user directly with that other user, and shall indemnify and hold POPSUGAR and its parents, subsidiaries and affiliates, and their respective officers, directors, employees or agents, harmless from any liability arising from or related to any such dispute.
POPSUGAR does not offer or provide medical advice, diagnosis, treatment or care and should not be used to diagnose or treat any illness, disease, disorder, or other medical condition. The Service is for informational and educational purposes only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment. You agree that it is your responsibility to consult with a health professional regarding participation in any of the activities described on or otherwise available through the Service and to verify any information as being appropriate for your use. Use of the Products and information available through the Service is at your sole choice and risk and POPSUGAR is not responsible for the accuracy, reliability, effectiveness, or correct use of information you receive through the Service, or for any injury or health issues that may result from any Products, activities, or events or information you learn about through the Service.
YOUR USE OF THE SERVICE AND ANY PRODUCT SOLD ON THE SERVICE IS AT YOUR OWN RISK. POPSUGAR PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SELLERS PROVIDE ALL PRODUCTS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. POPSUGAR AND EACH SELLER DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Without limiting any other disclaimers set forth in the Agreement, POPSUGAR makes no representations or warranties concerning:
RELEASE OF CLAIMS
You hereby release POPSUGAR, its officers, employees, agents and successors, 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 (a) your use of the Services; (b) any disputes with any other user or a third party; or (c) the Products sold or listed through the Service, including, but not limited to, claims related to defective Physical Products, misrepresentations by Sellers, infringement of third party rights, or Physical Products that caused physical injury or death (including, but not limited to, products liability claims).
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 THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL POPSUGAR, ITS PARENTS, SUBSIDIARIES, OR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE WITH RESPECT TO 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: (A) THE SERVICE FEES PAID BY YOU IN YOUR USE OF THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE TERM, OR (B) $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. BECAUSE SOME JURISDICTIONS, INCLUDING WITHOUT LIMITATION NEW JERSEY, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY SET FORTH ABOVE, THE ABOVE LIMITATIONS MAY NOT APPLY IF YOU ARE A RESIDENT OF NEW JERSEY OR ANY OTHER JURISDICTION THAT DOES NOT ALLOW SUCH LIMITATIONS. IN SOME CIRCUMSTANCES, POPSUGAR MAY BE LIABLE FOR ITS OWN NEGLIGENCE, RECKLESSNESS OR INTENTIONAL MISCONDUCT.
LIMITATION PERIOD FOR CLAIMS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
INTELLECTUAL PROPERTY INFRINGEMENT AND OTHER COMPLAINTS
POPSUGAR respects the rights of its users, including intellectual property rights. If you see content or a Product on the Service that you own and has been posted to the Service without your permission or violates our Guidelines or any applicable law, you may request removal by flagging the content using the reporting feature on each Product or user comment or by emailing us at email@example.com. We endeavor to respond quickly to such requests, which may include removing or disabling access to the material in question. Please note that we may also provide a copy of your notice to the party who posted such material. In cases of alleged copyright infringement related to User Content on the Service, please provide the information as set forth in our Copyright Dispute Policy, which may be found in the POPSUGAR Terms. It is POPSUGAR’s policy to terminate the Accounts of users that are involved in repeat notices of intellectual property infringement on the Service, which we may do in our discretion.
NEW JERSEY RESIDENTS
If, and to the extent that New Jersey law applies, with respect to residents of New Jersey, the terms in the sections of these GLOW Terms listed below do not limit any rights you may have as a consumer under New Jersey law and are intended to be only as broad and inclusive as permitted by the laws of the state of your residence:
Subject to the foregoing, POPSUGAR reserves all rights, defenses, and permissible limitations under New Jersey law. Nothing in this Section shall modify the binding arbitration clause and waiver for class action and jury trial set forth in the section below entitled YOU ARE AGREEING TO BINDING ARBITRATION.
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 for this section to satisfy 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 of the Service 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 section of this Agreement entitled 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.
U.S. EXPORT COMPLIANCE
You may not use the Service if (a) you are personally subject to U.S. government sanctions or (b) you are located in a country that is subject to U.S. Government sanctions such that your use of the Service would violate U.S. law. You represent and warrant that you are not subject to such sanctions.
SUGGESTIONS AND FEEDBACK
Any suggestions, feedback or other materials you submit to POPSUGAR (not including User Content) are considered non-confidential and non-proprietary unless specifically agreed to in writing signed by POPSUGAR. You grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation 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), shipping or delivery issues, or Products having been received not as described. If any provision of the Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable.
Governing Law and Choice of Forum
The 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 the Agreement (including all 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 GLOW Terms and the POPSUGAR Terms, the GLOW Terms will govern. All capitalized terms that are not defined herein have the meaning specified in the POPSUGAR Terms.
Assignment; No Agency
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. 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. 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.
CONTACT US WITH QUESTIONS
Should you have any questions regarding these GLOW Terms or the Service, you may contact us at ATTN: GLOW Team, POPSUGAR Inc. 111 Sutter Street, 16th Floor, San Francisco, California, 94104 or by email at firstname.lastname@example.org.