TERMS & CONDITIONS
THESE TERMS AND CONDITIONS (the “Terms”) ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW.
READ THESE TERMS CAREFULLY. THEY ARE A LEGAL CONTRACT GOVERNING YOUR USE OF THE HONEYBIRDETTE.COM/US.HONEYBIRDETTE.COM/UK.HONEYBIRDETTE.COM/EU.HONEYBIRDETTE.COM WEBSITE AND ANY MOBILE-OPTIMIZED WEBSITE, MOBILE APPLICATION, OR OTHER ONLINE SERVICE ALLOWING ACCESS THERETO (collectively, the “Site”) PROVIDED BY HONEY BIRDETTE (AUST) PTY LTD AND ITS AFFILIATED ENTITIES (collectively, “Honey Birdette,” “we,” or “us,” or “our”).
Eligibility. The Site is intended solely for persons who are 18 years old or older. Any access to or use of the Site by anyone under the age of 18 is expressly prohibited. By accessing or using the Site you represent and warrant that you are 18 years old or older. Furthermore, you agree to be of the legal age required by the state of your residence when purchasing applicable products from our site. It is your responsibility to determine if you can legally buy certain products (“Products”) from the Site which may include, for example, hemp-derived CBD products or smoking accessory products that may be available for purchase. You may not use our Products for any illegal or unauthorized purpose.
Transactions and E-Commerce. During your visit to the Site, you may elect to engage in a transaction involving the purchase of Products or any applicable services that may be offered. Credit card transactions and order fulfillment of Products are often handled by a third-party processing agent, bank or distribution institution. While in most cases transactions are completed without difficulty, there is no such thing as perfect security on the Internet or offline. If you are concerned about online credit card safety, in most cases a telephone number will be made available so you can call us and place your order by phone. Honey Birdette, its parent and its affiliates, cannot and do not take responsibility for the success or security of transactions undertaken or processed by third parties. We reserve the right to refuse any order for Products that you may attempt to purchase from the Site. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or otherwise. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. Should we make any change or cancel your order, we may attempt to notify you by contacting the email or phone number provided at the time your order was made. You represent to us that any information you provide in connection with purchasing Products from the Site, or otherwise engaging with the Site will be correct, complete, and accurate in all respects.
Products and Accuracy of Information. Certain Products may be available exclusively online through the Site, and/or may have limited quantities and are subject to return or exchange only according to our refund or return policy. On occasion, a Product may not be available at the time or the price as it appears in an advertisement or other material in the Site. In such event, or in the event a Product is listed at an incorrect price or with incorrect information due to typographical error, technology error, error in the date or length of publication, error in pricing or product information received from our advertisers or suppliers, or for any other reason, you agree that we are not responsible for such errors or discrepancies. We reserve the right to limit the sales of our Products to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. All descriptions of Products and pricing are subject to change at any time without notice at our sole discretion. We reserve the right to discontinue sales of any Product at any time. Any offer for any Product made on this Site is void in any state, province, or other jurisdiction where prohibited.
Health Information. As of the effective date of these Terms, the Food and Drug Administration (FDA) has not evaluated any statements or materials on our Site, nor those applicable Products we may sell and distribute which may become subject to guidance or regulations issued by the FDA. As such, neither the FDA nor any other regulatory body endorses or approves any Products on our site or ingredients of our Products. No Products offered on the Site should be expected to diagnose, treat, cure, or prevent any diseases. Where we have provided information about recommended use or application of any Products, such information is being shared only for instructive purposes only and is not meant in any way to be a substitute for any professional medical advice or care. For those who are pregnant, nursing, taking prescription medications, or have any pre-existing medical conditions, we strongly advise that you consult with your physician before using any applicable Products that may be offered on the Site.
Advertisements & Linked Sites. We participate in various affiliate marketing programs and other arrangements with both our PLBY Group affiliated entities and third parties, which means we may receive a commission or other form of compensation if you (a) click on certain ads or links that appear on our Site, or (b) purchase a product or service using links from our Site to affiliated or third party websites.
Your dealings or communications through the Site with any party other than Honey Birdette are solely between you and that third party. Under no circumstances will the Site be liable for any goods, services, resources or content available through such third-party dealings or communications, or for any harm related thereto. Please review carefully that third party's policies and practices and make sure you are comfortable with them before you engage in any transaction. Complaints, concerns or questions relating to materials provided by third parties should be directed to the third party.
Copyright. All information, content, services and software displayed on, transmitted through, or used in connection with the Site (with the exception of User Content as defined below), including, for example, Product reviews, descriptions, photographs, images, illustrations, audio clips, video, html, source and object code, trademarks, logos, and the like (collectively, the “Content”), as well as, its selection and arrangement, is owned by Honey Birdette and/or its licensors and suppliers. You may use the Content online only, and solely for your personal, non-commercial use, and you may download or print a single copy of any portion of the Content solely for your personal, non-commercial use, provided you do not remove any trademark or copyright notice, or other notice, from such Content. If you operate a website and wish to link to the Site, you may do so provided you agree to cease such link immediately upon request from us. No other use is permitted without the prior written permission of Honey Birdette. The permitted use described in this section is contingent on your compliance at all times with these Terms.
Except where explicitly provided for herein or on the Site, you may not republish any portion of the Content on any Internet, Intranet, extranet site or any other online or offline publication, or incorporate the Content in any database, compilation, archive, cache, or similar medium. You may not distribute any Content to others, whether or not for payment or other consideration, and you may not archive, modify, copy, frame, cache, reproduce, sell, publish, transmit, display, exploit, or otherwise use any portion of the Content. You may not scrape or otherwise copy our Content without our permission. You agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Site nor to insert any code or product or manipulate the Content or the Site in any way or for any purpose, and not to use any data mining, data gathering or extraction method.
Requests to use Content for any purpose other than as permitted in these Terms should be directed to firstname.lastname@example.org. In certain cases, you may be able to use individual images or video that appear on the Site through online functionality we have specifically designated (e.g., to email a Product image or description to a friend).
User Content Representations and Warranties. By placing material on the Site, including but not limited to posting content or communications to any Product review or other message or chat area available on the Site, or posting text, images, audio files, video clips, or any audio-visual content to the Site (collectively, “User Content”), you represent and warrant: (1) you own or otherwise have all necessary rights to the User Content you provide and the rights to provide it under these Terms; (2) the User Content will not cause injury to any person, group or entity; and (3) the User Content does not contain anything illegal or unlawful.
User Content License. For all User Content you post, upload, or otherwise make available (in this section – “Provide”) to the Site, you grant Honey Birdette a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and fully sub-licensable, assignable and transferrable license to use, copy, reproduce, distribute, publish, publicly perform, publicly display, modify, adapt, translate, archive, store, and create derivative works from such User Content, in whole or in part, in any form, format, or medium, of any kind now known or later developed. Without limiting the generality of the previous sentence, you authorize Honey Birdette to: (i) share the User Content across all websites, mobile applications, publications and other online and offline services affiliated with Honey Birdette; (ii) include the User Content in a searchable format accessible by users of the Site and other Honey Birdette websites, mobile applications, publications and other online services; (iii) place advertisements in close proximity to such User Content; and (iv) use your name, likeness and any other information you Provide in connection with our use of the material you Provide. You waive all moral rights with respect to any User Content you Provide to the Site. You also grant Honey Birdette the right to use any material, information, ideas, concepts, know-how or techniques contained in any communication you Provide or otherwise submit to us for any purpose whatsoever, including but not limited to, commercial purposes, and developing, manufacturing and marketing commercial products using such information. All rights in this section are granted without the need for additional compensation of any sort by Honey Birdette to you or to any other person or entity. You agree that you will indemnify, defend, and hold harmless Honey Birdette, its parent and affiliates, and each of their respective shareholders, officers, directors, employees, and agents for all claims resulting from User Content you post. We reserve the right, at our own expense, to assume the exclusive defense and control of such disputes, and in any event, you will cooperate with us in asserting any available defenses.
You also hereby grant each user of the Site a non-exclusive license to access your User Content through the Site, and to use, reproduce, distribute, display and perform such User Content as permitted through the functionality of the Site and under these Terms.
User Content Screening and Removal. You acknowledge that Honey Birdette and/or its designees may or may not pre-screen User Content, and shall have the right (but not the obligation), in their sole discretion, to move, remove, block, edit, or refuse any User Content for any reason, including without limitation that such User Content violates these Terms or is otherwise objectionable.
User Content Assumption of Risk. Although we may from time to time monitor or review postings, transmissions, and the like on the Site, we cannot and do not monitor or manage all User Content, and do not guarantee the accuracy, integrity, or quality of User Content. All User Content provided to the Site is the sole responsibility of the person who provided it. This means that you are entirely responsible for all User Content that you Provide. To protect your safety, please use your best judgment when using Site forums, chat rooms, review or comments sections, or similar features. We discourage divulging personal phone numbers and addresses or other information that can be used to identify or locate you. You acknowledge and agree that if you make such disclosures either through posting on any message forums, review or comment sections, or chat areas, or uploading text, images, audio files or other audio-visual content, in classified advertising you place or in other interactive areas, or to third parties in any communication, you do with the full understanding that such information could be used to identify and contact you.
User Content Posting Rules. Any decisions as to whether User Content violates any posting rule set forth in these Terms will be made by us in our sole discretion and after we have actual notice of such posting. When you provide User Content, you agree to the following rules:
Do not provide User Content that:
- contains copyrighted or other proprietary material of any kind without the express permission of the owner of that material;
- contains vulgar, profane, abusive, racist or hateful language, expressions, epithets, slurs, text, photographs or illustrations, or is in poor taste, or is an inflammatory attack of a personal, racial or religious nature;
- is defamatory, threatening, disparaging, grossly inflammatory, false, misleading, fraudulent, inaccurate, unfair, contains gross exaggeration or unsubstantiated claims, violates the privacy rights of any third party, is unreasonably harmful or offensive to any individual or community;
- may cause any harm or damage to the Site, you, us, or anyone else;
- violates any right of the Site, Honey Birdette, or any third party;
- infringes other individuals privacy rights or rights of publicity;
- discriminates on the grounds of race, religion, national origin, gender, age, marital status, sexual orientation or disability, or refers to such matters in any manner prohibited by law.
- violates or encourages the violation of any municipal, state, federal or international law, rule, regulation, ordinance, or similar requirement;
- interferes with any third party’s use or enjoyment of the Site;
- advertises, promotes or offers to trade any goods or services, except in areas specifically designated for such purpose;
- collects any user content or information, or otherwise accesses the Site using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission;
- violates any robot exclusion headers of the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access to the Site;
- shares, recompiles, decompiles, disassembles, reverse engineers, or makes or distributes any other form of, or any derivative work from, the Site;
- attempts to scrape or collect any personal or private information from other users or from the Site;
- pretends to come from someone other than you, or where you are impersonating someone else;
- intercepts or monitors, damages, or modifies any communication not intended for you;
- uses or attempt to use another's registration account, password, service or system except as expressly permitted by the Terms;
- uploads or transmits viruses or any other harmful, disruptive or destructive files, materials or code;
- disrupts, interferes with, or otherwise harms or violates the security of the Site, or any services, system resources, accounts, passwords, servers or networks connected to or accessible through the Site or affiliated or linked sites;
- harasses, abuses, bullies, threatens, or “flames” any individual or entity (e.g., sends messages related to another user or model, and/or makes abusive, derogatory, crude, or offensive comments about another individual), or repeats a prior posting of the same message under multiple threads or subjects; or otherwise breaches these Terms.
WARNING: HONEY BIRDETTE HAS NO TOLERANCE FOR ANY VIOLATION OF THE ABOVE POSTING RULES, NOR ANY USE OR INTERACTION WITH THE SITE THAT MAY PERMIT OR ALLOW THE UPLOADING OR SHARING OF ANY CONTENT THAT MAY BE THE RESULT OF OR RELATE TO ANY SEXUAL OR HUMAN TRAFFICKING, PHYSICAL ABUSE, OR THE EXPLOITATION OF CHILDREN. ANY SUCH VIOLATIONS OR UNLAWFUL CONTENT MAY BE REFERRED TO LAW ENFORCEMENT AUTHORITIES.
You shall notify us immediately upon becoming aware of any conduct or behavior by any individuals or entities of any restricted uses of the Site and/or any suspected unlawful content by sending an email to email@example.com, and you shall provide us with reasonable assistance in any investigations we conduct in light of the information you provide to us. We will remove such content and take other appropriate action which may include terminating/disabling user accounts and reporting the matter to appropriate organizations or advocacy groups as we deem necessary.
You acknowledge that we have no obligation to monitor any users’ access to or use of the Site, or to review or edit any Content or User Content, but we have the right to do so in our sole discretion: (i) for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) to ensure your or another user’s compliance with these Terms; (iii) to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body; or (iv) to address content that we determine is otherwise objectionable or violates these Terms. We reserve the right, at any time and without prior notice, to remove or disable access to any User Content that we, in our sole discretion, consider to be objectionable for any reason, in violation of these Terms, otherwise harmful to the Site, or for any other reason that we deem appropriate. In order to protect the integrity of the Site, we also reserve the right at any time in our sole discretion to block users from certain IP addresses or geographic locations from accessing and using the Site.
You acknowledge, consent, and agree that we may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary: (i) to respond to claims asserted against us or to comply with legal process (for example, subpoenas, warrants, or other process ); (ii) to enforce or administer our agreements with users, including without limitation these Terms; (iii) to render services you request; (iv) to protect the rights or property of the Site, Honey Birdette, and their respective third-party suppliers, service providers, and licensors; (v) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes; (vi) to protect the rights, property or safety of Honey Birdette, the Site, its users, or members of the public; or (vii) in circumstances that we deem, in our sole discretion, to pose a threat to the safety of us, you or others.
Notice of Intellectual Property Infringement. In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable law, it is our policy, in appropriate circumstances, to terminate the customer account of anyone who is deemed to infringe third-party intellectual property rights or to remove User Content that is deemed to be infringing. If you believe that your work has been copied in a way that constitutes copyright infringement and is displayed on the Site, please provide substantially the following information to our Copyright Agent (please consult your legal counsel or see 17 U.S.C. Section 512(c)(3) to confirm these requirements):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of your copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material you claim is infringing is located on the Site (providing us with website URL is the quickest way to help us locate content quickly);
- your address, telephone number, and e-mail address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
The Site’s Copyright Agent can be reached as follows:
Honey Birdette (Aust) Pty Ltd c/o PLBY Group, Inc.
Attn: Copyright Manager
10960 Wilshire Blvd, Suite 2200
Los Angeles, CA 90024
Phone: (310) 424-3723
Please note that the above contact information is for intellectual property infringement notices only. DO NOT CONTACT OUR COPYRIGHT AGENT FOR OTHER INQUIRIES OR QUESTIONS. For other inquiries or questions, please email us at firstname.lastname@example.org. Please also note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
General Disclaimer and Limitation of Liability. While we use reasonable efforts to include accurate and up-to-date information, we do not make any warranties or representations as to the accuracy of the Content appearing on the Site, including the User Content, and assume no liability or responsibility for any error or omission in the Content. We do not represent or warrant that use of any Content will not infringe rights of third parties. We have no responsibility for actions of third parties or for content provided by others, including without limitation User Content.
USE OF THE SITE IS AT YOUR OWN RISK. ALL CONTENT AND ACCESS TO THE SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER HONEY BIRDETTE, ITS PARENT, AND AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, AGENTS, CONTENT PROVIDERS, SERVICE PROVIDERS, OPERATORS, OR LICENSORS (COLLECTIVELY, “HONEY BIRDETTE ENTITIES”), MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE SITE, THE CONTENT, ANY ADVERTISING MATERIAL, INFORMATION, PRODUCTS OR SERVICES AVAILABLE ON OR THROUGH THE SITE, THE AVAILABILITY OF THE SITE OR THE CONTENT THEREON, AND/OR THE RESULTS THAT MAY (OR MAY NOT) BE OBTAINED FROM ACCESS OR USE OF THE SITE OR THE CONTENT. ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES AGAINST INFRINGEMENT, AND WARRANTIES THE SITE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, ARE SPECIFICALLY DISCLAIMED. THE HONEY BIRDETTE ENTITIES ARE NOT RESPONSIBLE OR LIABLE FOR CONTENT POSTED BY THIRD PARTIES, ACTIONS OF ANY THIRD PARTY, OR FOR ANY DAMAGE TO, OR VIRUS OR MALWARE THAT MAY INFECT, YOUR COMPUTER EQUIPMENT, MOBILE DEVICE, OR OTHER PROPERTY. THE SITE CONTAINS FACTS, VIEWS, OPINIONS, STATEMENTS AND RECOMMENDATIONS OF THIRD-PARTY INDIVIDUALS AND ORGANIZATIONS. HONEY BIRDETTE DOES NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED, UPLOADED OR DISTRIBUTED THROUGH THE SITE. ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT OR INFORMATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE HONEY BIRDETTE ENTITIES SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, THE CONTENT OR ANY ERRORS OR OMISSIONS IN THE CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE HONEY BIRDETTE ENTITIES SHALL NOT BE LIABLE FOR ANY AMOUNT FOR DIRECT DAMAGES IN EXCESS OF THE LESSER OF $100 OR THE AMOUNT YOU PAID TO USE THE SITE. THE LIMITATION OF LIABILITY DESCRIBED ABOVE SHALL APPLY FULLY TO RESIDENTS OF NEW JERSEY.
Indemnity. You agree to indemnify, defend and hold harmless Honey Birdette, its parent and affiliates, and each of their respective shareholders, officers, directors, members, employees, representatives, contractors, agents, and licensees from and against any and all claims (including but not limited to claims for defamation, trade disparagement, privacy and intellectual property infringement) and damages (including attorneys' fees and court costs) in any and all jurisdictions arising from or relating to any allegation regarding: (1) your use of the Site; (2) the Site’s and/or Honey Birdette’s use of any User Content or information you provide; (3) information or material Provided through your customer account, even if not posted by you; and (4) any violation of these Terms by you.
Australia, United States and International Users. The Site is controlled, operated and administered by Honey Birdette or its designees from offices located in Australia. Furthermore, the Site and any Products available for purchase are intended for consumers living in those countries such as Australia, United States, the United Kingdom/EU, and other countries where Honey Birdette or its designees may sell the Products. It is your responsibility to know if accessing and buying certain Products is legal where you reside. Accessing the Site and purchasing such Products is at your own risk and you assume all liability with respect to your compliance with applicable laws, regulations, treaties, and other rules applicable to the country of your residence. Neither Honey Birdette nor its designees make any representation that the Products or Content available through the Site are appropriate or available for use in your country of residence. Access to the Site is prohibited from territories where any Products or Content may be illegal. You may not use the Site or export any Products, Content and/or User Content in violation of applicable export laws and regulations.
Discontinuation of Service. We may modify, suspend, discontinue or restrict the use of any portion of the Site, including the availability of any Products at any time, without notice or liability. We may deny access to any customer or other user at any time for any reason, or no reason at all in our sole discretion. In addition, Honey Birdette may at any time transfer rights and obligations under these Terms to any PLBY Group affiliate, subsidiary or business unit, or any of their affiliated companies or divisions, or any entity that acquires Honey Birdette, the Site or any of their respective assets.
Statute of Limitations. You agree to file any claim regarding any aspect of this Site or these Terms within six (6) months of the time in which the events giving rise to such claim began, or you agree to waive such claim. This statute of limitations provision does not apply to residents of New Jersey.
Disputes. You may contact email@example.com to address any concerns you may have regarding the Site. We will attempt to resolve concerns quickly to our customers’ satisfaction. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Honey Birdette and good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
For any dispute that is not subject to binding arbitration or otherwise as set forth in these Terms, you and Honey Birdette agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Los Angeles County, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
These Terms and the relationship between you and the Site shall be governed by the laws of the State of California without regard to conflicts of law provisions.
MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Honey Birdette agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Honey Birdette as follows:
Initial Dispute Resolution. Most disputes can be resolved without resorting to litigation. You can reach us at firstname.lastname@example.org. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration (except with respect to the exceptions set forth below).
To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Honey Birdette will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Honey Birdette will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in Los Angeles County in the State of California, United States of America, and you and Honey Birdette agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND HONEY BIRDETTE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. 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 provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes on a class basis.
Exception. Litigation of Intellectual Property and Small Claims Court Claims:
Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court's jurisdiction.
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 to email@example.com with the subject line, "MANDATORY ARBITRATION AND CLASS ACTION WAIVER OPT-OUT." The notice must be sent within thirty (30) days of (a) the Effective Date of these Terms; or (b) the first date that you used the Site that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Honey Birdette also will not be bound by them.
Changes to This Section. Honey Birdette reserves the right to change this Section (Mandatory Arbitration and Class Action Waiver) at any time to reflect changes in the law, the features of our Site, or other considerations. Please check this page periodically for changes. Such changes will only become effective sixty (60) days after the revised Effective Date of these Terms and will only apply prospectively to claims arising after the sixtieth (60th) day. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the section entitled “Mandatory Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section in existence after you began using the Site.
Survival. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your account or the Site.
Force Majeure. The failure of Honey Birdette to comply with any provision of these Terms due to an act of God, hurricane, war, fire, riot, pandemic/epidemic, earthquake, terrorism, act of public enemies, actions of governmental authorities outside of the control of Honey Birdette (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of these Terms.
Severability. If for any reason any provision of these Terms is found unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected in that provision, and the remainder of these Terms shall continue in full force and effect.
No Waiver. Any failure by us to enforce or exercise any provision of these Terms or related right shall not constitute a waiver of that right or provision.
No Third-Party Beneficiaries. You agree, except as expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
Section Titles. The section titles used in these Terms are purely for convenience and carry with them no legal or contractual effect.
Termination. In the event of termination of these Terms for any reason, you agree the following provisions will survive: the provisions regarding limitations on your use of Content, the license(s) you have granted to the Site, the Disputes provisions, and all other provisions for which survival is equitable or appropriate.
Material Terms. You agree that the provisions of these Terms that limit liability and disclaim warranties are essential terms of these Terms and Conditions.
Entire Agreement. These Terms constitute the entire agreement between you and Honey Birdette with respect to the Site and supersede all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of these Terms will be binding unless made in writing and signed by Honey Birdette. Honey Birdette may post any changes to these Terms at any time in its discretion, and such changes will become binding as of the Effective Date of the posting of the updated Terms and your continued use of the Site going forward (except as otherwise provided in the “Changes to this Section” provision above regarding Mandatory Arbitration and Class Waiver). No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, these Terms shall govern.
Effective Date: December 1, 2021
The following Honey Birdette Gift Card and Store Credit Terms and Conditions (“Agreement”) describes the terms and conditions that apply to the use of Honey Birdette gift cards, gift certificates and store credits, including plastic/paper cards and credits and digital/electronic cards and credits (collectively, “Cards”). This Agreement is between you, the Cardholder, and Honey Birdette, Inc. (“Issuer”). By purchasing, accepting or using your Card, you agree to be bound by this Agreement. If you do not agree with this Agreement, do not purchase, use or accept the Card. IMPORTANT: This Agreement includes resolution of disputes by arbitration on an individual basis instead of in court.
About Your Card. The Cards are issued by Issuer. Issuer is responsible for the operation and maintenance of the Card program. Issuer is the sole legal obligor to the Cardholder; provided, however, that Issuer may assign its obligations with respect to the Card at any time, in which case such assignee shall become the Issuer and sole legal obligor to the Cardholder. Issuer’s affiliates and related entities (including but not limited to Honey Birdette (Aust) Pty Ltd) bear no responsibility or liability for any Cards, and you hereby knowingly release Issuer’s affiliates and related entities from any and all liability or claims of any nature whatsoever arising in connection with the Card. Cards (other than store credits) can be purchased at Honey Birdette Boutique locations or via authorized third-party distributors, or online at https://www.honeybirdette.com/. Store credits may be issued at Honey Birdette Boutique locations in exchange for merchandise returned without a receipt, to the extent provided by Honey Birdette’s return policy.
Not for Resale. Cards cannot be resold. Cards are valid only if obtained at Honey Birdette Boutique locations (including Honey Birdette’s website) or authorized third-party distributor. Cards are not valid and will not be honored, and Issuer will not be liable, if obtained from unauthorized sellers or resellers, including through Internet auction sites.
Balance Inquiry. For balance inquiry, please email firstname.lastname@example.org. The balance you receive when inquiring over the telephone or via e-mail is an estimate only. In most cases, the balance is adjusted immediately when you make a purchase, but there may be occasions when the balance adjustment is delayed.
Expiration/Deactivation. All physical and digital Honey Birdette gift cards have a 3-year expiry date from the date of issue. No fees for inactivity or service fees apply. Issuer reserves the right to refuse to honor any Card in the event of a disputed credit card charge, bounced check or other failure of consideration.
Cards are redeemable only for purchases of merchandise at Honey Birdette Boutique locations, including through the Honey Birdette website. Cards are not debit or credit cards. Cards have no cash value and may not be redeemed for cash (except as required by law). Cards are not redeemable to purchase another Card or towards previously purchased goods or services.
Cards are may be eligible for reloading with value as determined by Honey Birdette.
No Refunds. No refunds are permitted with respect to Cards.
Both physical and digital gift cards can only be used in the country in which it was purchased, gift cards are not transferrable across regions. Store credits are non-transferable.
Lost, Destroyed or Stolen Card. The value of any lost, destroyed or stolen Cards, or any Cards used without authorization, will not be replaced or replenished without original proof of purchase. The value replaced will be equal to the remaining balance on the Card at the time of replacement.
Mandatory Binding Individual Arbitration. Please read this section carefully. It affects legal rights that you may otherwise have and requires individual final and binding arbitration of most disputes instead of resolution in court.
Arbitration is the submission of a dispute to a neutral arbitrator, instead of a judge or jury, for a final and binding decision, known as an “award.” Arbitration provides for more limited discovery than in court, is subject to limited review by courts, and the result is confidential. Each party has an opportunity to present evidence to the arbitrator in writing or through witnesses. An arbitrator can only award the same damages and relief that a court can award under the law and must honor the terms and conditions in this Agreement.
ARBITRATION AGREEMENT, CLASS ACTION WAIVER, PUNITIVE DAMAGES WAIVER
You and Issuer agree that any dispute, claim or controversy, whether at law or equity, arising out of or relating to this Agreement or your use of the Card, regardless of the date of accrual of such dispute, including but not limited to the arbitrability of any dispute, shall be resolved in its entirety by individual (not classwide or collective) binding arbitration, except that you or Issuer may take claims to small claims court if they qualify for hearing by such a court.
You and Issuer agree that any arbitration under this Agreement will take place on an individual basis and that class, mass, consolidated or combined actions are not permitted. You and Issuer agree that the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim.
In any arbitration arising out of or related to this Agreement, the arbitrator(s) are not empowered to award punitive or exemplary damages. You and Issuer both waive, to the fullest extent allowed by law, any claims to recover punitive or exemplary damages. This agreement to arbitrate extends to claims that you or Issuer assert against other parties, including without limit claims against Issuer’s affiliates and related entities.
You and the Issuer acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
This agreement to arbitrate shall survive termination of this Agreement. If it is decided that applicable law precludes enforcement of any of this arbitration agreement’s limitations as to a particular claim for relief, then that claim (and only that claim) shall be severed from the arbitration and may be brought in court. In addition, notwithstanding anything to the contrary, if any part of this agreement to arbitrate is deemed invalid or inapplicable, the remainder of the agreement to arbitrate shall still be considered valid and enforceable.
Nothing herein shall be construed as consent by Issuer to the jurisdiction of any court with regard to claims unrelated to the use of your Card or this Agreement.
The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures (the “JAMS Rules”). The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules, except that for claims of less than $1,000, you will be obligated to pay $25 and Issuer will pay all other administrative costs and fees. In addition, for claims of less than $1,000, Issuer will reimburse you for the $25 fee if the arbitrator rules in your favor. Reasonable attorneys’ fees and expenses will be awarded only to the extent such allocation or award is available under applicable law.
Any arbitration will take place in or near the county where claimant resides and will be determined by a single arbitrator; provided, however, that upon request by either party, the arbitration shall be conducted via telephone or videographically to the extent permitted by the JAMS Rules. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief).
Judgment on the award may be entered in any court of competent jurisdiction.
Limitation of Liability. ISSUER AND ITS AFFILIATES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO CARDS INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT THAT A CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH CARD. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU.
Governing Law. The laws of the State of California, without regard to, and exclusive of, principles of conflict of laws, shall govern this Agreement (including the arbitration agreement) and use of your Card.
Severance. Notwithstanding anything herein to the contrary, if any part of this Agreement is deemed invalid or inapplicable, such provision shall be modified or restricted to the extent and in the manner necessary to render it valid, legal, and enforceable. If such provision cannot be so modified or restricted, it shall be excised from this Agreement without affecting the validity, legality, or enforceability of the remainder of this Agreement, which shall be fully enforced.
Changes to Agreement. Issuer reserves the right to change this Agreement from time to time in its discretion, which changes we may provide to you by any reasonable means, including without limitation, by posting the revised version of this Agreement at https://www.honeybirdette.com/pages/gift-card-terms-conditions.
Fraud. Issuer reserves the right to refuse to honor a Card where Issuer suspects that the Card was obtained fraudulently.