Spirit Halloween Website Terms of Use

 

Last Updated:December 30, 2019

 

 

TABLE OF CONTENTS

Select a topic Introduction Your Use of the Site Content You Submit and Community Usage Rules Infringement and Dispute Terms Third-Party Interactions Messaging and Location-Based Features Limitation of Liability Disclaimers Indemnification Dispute Resolution Applicable Law Assignment Complete Agreement and Severability Investigations; Cooperation with Law Enforcement California Consumer Rights and Notices International Issues Export Controls Electronic Contracting Termination; Survival Contact Us

1.     INTRODUCTION

These Website Terms of Use (“Terms”) set forth a legally binding agreement between you and Spirit Halloween Superstores LLC (“Spirit”, “we”, “us”) and govern your use of www.SpiritHalloween.com and your use of interactive features, widgets, plug-ins, applications, content, downloads, and/or other services that we own and control and make available through www.SpiritHalloween.com (collectively, the “Site”). By using the Site, you acknowledge and accept these Terms, including the binding arbitration terms in Section 10.

Additional or different terms and/or conditions may apply to your use of the Site or to a service or product offered via the Site (in each such instance, and collectively “Additional Terms”). If you do not wish to be bound by these Terms, and any applicable Additional Terms, do not use the Site.

These Terms are subject to change without notice. When such a change is made, we will update the “Last Updated” date at the top of this page. Your use of the Site following any such change constitutes your agreement to follow and be bound by the updated Terms.

2.     YOUR USE OF THE SITE

A. Content. The Site may contain (a) materials and other items relating to Spirit and its services including layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, and the “look and feel” of the Site such as the selection, compilation, assembly, arrangement, and enhancement of the Site; (b) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Spirit; and (c) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Content available via the Site is the property of Spirit, our licensors, or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent, and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.

 

B. Limited License. Subject to your strict compliance with these Terms, Spirit grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, or play the Content on a personal device, and retain one copy of the Content as it is displayed to you for your personal, non-commercial use only. The foregoing limited license does not give you any ownership of, or any other intellectual property interest in, any Content, which may be immediately suspended or terminated for any reason, in Spirit’s sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.

 

C. Reservation of All Rights. All rights not expressly granted to you are reserved by Spirit and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Content or the Site for any purpose is prohibited.

 

D. Site Content Accuracy. Spirit will use reasonable efforts to include accurate and current information on the Site, but there may be occasions when information on the Site contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, availability, and other matters. Spirit reserves the right to correct any errors and to update Site information at any time.

 

E. Availability of Site and Content. Spirit may immediately suspend or terminate the availability of the Site and Content (and any elements and features related thereto), in whole or in part, for any reason, in Spirit’s sole discretion, and without advance notice or liability.

 

F. Creating and Accessing an Account on the Site. When you register for an account on the Site, and each time you log in to the Site thereafter, you agree:

• You will provide and keep accurate, current, and complete information about yourself;
• You will not use a username (or email address) that is: already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive;
• You are solely responsible for all activities associated with your account or carried out by a user of your account, whether or not you authorized the activity;
• You will abide by the use restrictions set out in these Terms;
• You are solely responsible for maintaining the confidentiality of your Site access credentials and you will not share your credentials with any third party;

·       You will immediately notify us if your credentials are compromised or of any unauthorized use of your account, but accept that we are not responsible for thereafter stopping or preventing unauthorized use;

• You will not sell, transfer, or assign your account or any account privileges; and
• We will not be liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.

If you are under the age of eighteen, then you are not permitted to register as a user. We may reject the use of any password, username, or email address for any other reason in our sole discretion. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any applicable Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the right, as permitted by applicable law, to terminate your account or suspend or otherwise deny your access to the Site or its benefits in our sole discretion, for any reason, and without advance notice or liability.

 

G. Restrictions and Prohibited Uses. You agree that, except as otherwise authorized, you will not:

 

• Use the Site for any commercial or political purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, or selling products).
• Engage in any activities through or in connection with the Site that: harm, or attempt to harm, any individuals or entities; are unlawful, offensive, obscene, lewd, lascivious, violent, threatening, harassing, scandalous, inflammatory, pornographic, profane, abusive; violate any right of any third party; or could constitute or encourage conduct that would be considered a criminal offense, give rise to civil liability, or otherwise violate any law, or are otherwise objectionable to Spirit.
• Decompile, disassemble, reverse engineer, or attempt to reconstruct, identify, or discover any source code, underlying ideas, underlying user interface techniques, hidden text, or algorithms of the Site by any means whatsoever or modify any software (in either object code or source code) or other products, services, or processes accessible through any portion of the Site.
• Engage in any activity that interferes with a user’s access to the Site or the proper operation of the Site, or otherwise causes harm to the Site, Spirit, or other users of the Site.
• Interfere with or circumvent any security feature (including any digital rights management mechanism, device, or other content protection or access control measure) or any other feature that restricts or enforces limitations on use of or access to the Site or the Content.
• Harvest or otherwise collect or store any information (including personally identifiable information about other users of the Site, without the express consent of such users).
• Attempt to gain unauthorized access to the Site, or other computer systems or networks connected to the Site.
• Use the Site to transmit information that is in any way false, fraudulent, or misleading.

• Monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Site by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind.
• Frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout).
• Remove any copyright or other intellectual property notices contained in such Content;
• Copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit the Content in any way for any purpose except as specifically permitted by these Terms or with the prior written consent of Spirit.
• Insert any code or product to manipulate the Content in any way that adversely affects the Site.
• Otherwise Violate These Terms

 

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Site, so long as: (a) the links only incorporate text, and do not use any Trademarks; (b) the links and the content on your website do not suggest any affiliation with Spirit or cause any other confusion; and (c) the links and the content on your website do not portray Spirit or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Spirit. Spirit reserves the right to suspend or prohibit linking to the Site for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

 

Spirit in its sole discretion and without advance notice, may immediately suspend or terminate the availability of the Site and/or Content (and any elements or features of the same), in whole or in part, for any reason and without liability.

 

H. Rights of Others. In using the Site, you must respect the intellectual property and other rights of Spirit and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Spirit respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Site, then please see Procedure for Alleging Copyright Infringement Section 4(A).

 

I. Your Interactions with Other Users; Disputes. You are solely responsible for your interaction with other users of the Site, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities. If you send any message related to us to your friends, using a tool we provide on the Site or otherwise, you will only do so to the extent you have permission from them to send communications of such nature and you will comply with all applicable laws related to such communications, including without limitation disclosing any incentives or consideration you may be receiving from us related thereto.

 

3. CONTENT YOU SUBMIT AND COMMUNITY USAGE RULES

 

A. User-Generated Content. Spirit may now, or in the future, offer users of the Site the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Site messages, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively “User-Generated Content” or “UGC”).

 

1. Non-Confidentiality of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms, you agree that (a) your UGC will be treated as non-confidential and non-proprietary by us – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent not prohibited by applicable law, Spirit does not assume any obligation of any kind to you or any third party with respect to your UGC. Upon request, you will provide documentation necessary to authenticate rights to such content and verify your compliance with these Terms or any applicable Additional Terms.
   
   In your communications with Spirit, please keep in mind we may seek any ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software, or otherwise (collectively, “Solicited Ideas and Materials”). Any Solicited Ideas and Materials you submit are deemed UGC and licensed to us as set forth below in 3(A)(ii). In addition, Spirit retains all of the rights held by members of the general public with regard to your Solicited Ideas and Materials. Spirit’s receipt of your Solicited Ideas and Materials is not an admission by Spirit of their novelty, priority, or originality, and it does not impair Spirit’s right to contest existing or future intellectual property rights relating to your Solicited Ideas and Materials. If we do not seek Solicited Ideas and Materials, you will not send us any original creative materials. Any such communication or material you do transmit to us will be treated as non-confidential and non-proprietary and are deemed UGC and licensed to us as set forth below in 3(A)(ii).

 

2. License to Spirit of Your UGC. Except as otherwise described in any applicable Additional Terms (such as a promotion’s official rules), which specifically govern the submission of your UGC, you hereby grant Spirit the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your UGC (and derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such UGC and combine same with other materials; and (b) use any ideas, concepts, know-how, or techniques contained in any UGC for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices, and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to Spirit to your UGC, you also, as permitted by applicable law, grant to Spirit the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any UGC, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive any moral rights (including attribution and integrity) that you may have in any UGC, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 3(A)(ii).

3. Spirit’s Exclusive Right to Manage the Site. Spirit may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and Spirit may, in its sole discretion, reject, delete, move, re-format, refuse to post, or otherwise make use of UGC without notice or any liability to you or any third-party in connection with our operation of UGC venues in an appropriate manner, such as to enhance accessibility of UGC, address copyright infringement, and protect users from harmful UGC. Without limitation, we may, but do not commit to, address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such UGC submitted by you or others need not be maintained on the Site by us for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such UGC on the Site or elsewhere.

 

4. Representations and Warranties Related to Your UGC. Each time you submit any UGC, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside and that: (a) you are the sole author and owner of the intellectual property and other rights to the UGC, or you have a lawful right to submit the UGC, and grant Spirit the rights to it that you are granting by these Terms and any applicable Additional Terms, all without any obligation on Spirit to obtain consent of any third party and without creating any obligation or liability of Spirit; (b) the UGC is accurate; (c) the UGC does not and, as to Spirit’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the UGC will not violate these Terms or any applicable Additional Terms, or cause injury or harm to any person.

 

5. Enforcement. Spirit has no obligation to monitor or enforce your intellectual property rights to your UGC, but you grant us the right to protect and enforce our rights to your UGC, including initiating actions in your name and on your behalf (at Spirit’s cost and expense, to which you hereby consent and irrevocably appoint Spirit as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest). For alleged infringements of intellectual property rights, see Section 4. We expect UGC to be appropriate for a general audience, but do not undertake to monitor it, and you consent to potentially encountering content you find offensive or inappropriate. If you discover any content that violates these Terms or any applicable Additional Terms, then you may report it by contacting us at legaldept@spirithalloween.com. If you submit UGC that Spirit reasonably believes violates these Terms, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by applicable law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the UGC in question being removed from the Site.
   
   

4. INFRINGEMENT AND DISPUTE TERMS

 

A.    Procedure for Alleging Copyright Infringement

If you are a copyright owner and believe infringing use of your content is on our Site, or you are a user who has received notice that you have posted allegedly copyright infringing content on our Site, see below for more information.

 

Spirit asks our users to respect the intellectual property rights of others. It is our policy to respond appropriately to clear notices of alleged copyright infringement, as set forth more fully below. In Spirit’s sole discretion, we may remove content that may be infringing on another person’s intellectual property rights with or without notice to the potential infringer. In accordance with the U.S. Digital Millennium Copyright Act (“DMCA”) and other applicable law, Spirit Halloween Superstores LLC has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers.

 

If we remove or disable access in response to a DMCA Copyright Infringement Notice, we will make a good faith attempt to contact the owner or administrator of the affected content so that they may make a counter-notification. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Site, then you may send us a written notice that includes all of the following:

 

                i.         a title or subject line that says: “DMCA Copyright Infringement Notice”;

ii.         a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

              iii.         a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the full URL of the page(s) on the Site on which the material appears or relevant screenshots);

             iv.         your full name, address, telephone number, and email address;

              v.         a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

             vi.         a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and

            vii.         your electronic or physical signature.

 

Spirit will only respond to DMCA Notices that it receives by mail or email at the addresses below:

 

B.    Counter-Notification.

 

If access on the Site to a work that you submitted to Spirit is disabled or the work is removed as a result of a DMCA Copyright Infringement Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

 

                i.         a legend or subject line that says: “DMCA Counter-Notification”;

               ii.         a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the full URL of the page(s) on the Site from which the material was removed or access to it disabled or relevant screenshots);

              iii.         a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

             iv.         your full name, address, telephone number, email address, and the username of your Account;

              v.         a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the New York Supreme Court, and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

             vi.         your electronic or physical signature.

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

 

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Site. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

 

5. THIRD-PARTY INTERACTIONS

 

A. Third-Party Content and Websites. The Site may display, include, or make available content, data, information, applications, or materials from third parties or provide links to certain third-party content that is not owned, controlled, or operated by Spirit. Any interactions, transactions, or other dealings that you engage in with any third parties found on or through the Site are solely between you and the third party.

 

By using the Site, you acknowledge and agree that Spirit is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of third-party services. You hereby agree to indemnify Spirit against all claims, injury, and/or damages arising out of your use of any third-party service.

 

B. Business Transactions. We reserve the right to transfer any information we obtain through the Site in the event of a joint venture, partnership, merger, or other collaboration with another organization, or in the event we sell or transfer all or a portion of our business or assets (e.g., further to a reorganization, liquidation, or any other business transaction, including negotiations of such transactions).

 

6. MESSAGING and Location-Based Features

A. Text Messages. You may be given opportunities to subscribe to various text marketing or other text messaging programs, which may include messages sent via automated technology. These programs may include text messages from our various businesses and affiliates, as well as co-promotions. Your participation in any text message program will be subject to these Terms as well as any other terms presented to you at the time you opt in. Your consent to receive text messages is not required to purchase any product or service.

B. Email Messages.

You may cancel or modify your email marketing communications preferences by following the instructions contained in our promotional emails. You may also opt out of email marketing by contacting us at:

If you are a registered user on the Site, you may also control your email marketing preferences through your account settings, which may include the ability to limit the categories and types of marketing emails you receive from us. Please allow up to 10 business days for your request to be processed. This will not affect subsequent subscriptions. Please note that even if you opt out of receiving marketing communications, we may still send you transactional emails relating to your account or use of the Site.

C. Location-Based Features. If GPS, geo-location, or other location-based features are enabled on your device, you acknowledge that your device location may be tracked and may be shared with others. Some devices and platforms may allow disabling some, but not all, location-based features or managing such preferences. Typically, your proximity or connection to wi-fi, Bluetooth, and other networks may still be tracked when location services are turned off on device settings. Territory geo-filtering may be required in connection with use of some Site features due, for instance, to Content territory restrictions.

7. LIMITATION OF LIABILITY

 

IN NO EVENT WILL SPIRIT, OR ITS PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, CONSULTANTS, AGENTS, AND/OR EMPLOYEES (COLLECTIVELY, “SPIRIT PARTIES”), OR ANY THIRD-PARTY PROVIDER OF A SERVICE, TOOL, OR PRODUCT OFFERED THROUGH OR IN CONNECTION WITH THE SITE (EACH A “THIRD-PARTY PROVIDER”), BE LIABLE FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM: (A) OUR SITE, (B) THESE TERMS, (C) ANY BREACH OF THESE TERMS BY YOU OR A THIRD PARTY, (D) USE OF THE SITE, TOOLS, OR SERVICES WE PROVIDE, OR ANY THIRD-PARTY PROVIDER PROVIDES, RELATED TO THE BUSINESS WE OPERATE ON THE SITE, BY YOU OR ANY THIRD PARTY, (E) YOUR FAILURE TO KEEP YOUR SITE ACCESS CREDENTIALS SECURE AND CONFIDENTIAL, (F) YOUR ENGAGEMENT WITH OTHER USERS, (G) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, OR IN CONNECTION WITH, THE SITE, AND/OR (H) INTERACTION BETWEEN OUR SITE AND ANY THIRD-PARTY SERVICE, BY A TOOL OR SERVICE ON OUR SITE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) STRICT LIABILITY, (4) TORT, (5) NEGLIGENCE, OR (6) ANY OTHER CAUSE OF ACTION, TO THE MAXIMUM EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW.

As permitted by applicable law, the foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Spirit Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Site).

 

EXCEPT AS MAY BE PROVIDED IN ANY APPLICABLE ADDITIONAL TERMS, OR AS PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SPIRIT PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SITE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID SPIRIT IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A COURT OR TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.

 

NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (A) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY SPIRIT PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY SPIRIT PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (B) SPIRIT PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY SPIRIT PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (C) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST SPIRIT PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.

8. DISCLAIMERS

 

AS PERMITTED BY APPLICABLE LAW, YOUR ACCESS TO AND USE OF THE SITE IS AT YOUR SOLE RISK AND THE SITE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, SPIRIT PARTIES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH OR OTHERWISE RELATED TO THE SITE, INCLUDING CONTENT AND UGC, OR, FOR ANY PRODUCTS OR SERVICES OR HYPERTEXT LINKS TO THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SERVICE. FURTHER, WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ACCURACY. WE DO NOT WARRANT THAT THE FUNCTIONALITY OF THE SITE OR ANY MATERIALS OR CONTENT CONTAINED THEREIN, WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE IS FREE OF VIRUSES, MALICIOUS SOFTWARE, OR OTHER HARMFUL COMPONENTS.

 

YOU ACKNOWLEDGE AND AGREE THAT ANY TRANSMISSION TO AND FROM THIS SITE IS NOT CONFIDENTIAL AND YOUR COMMUNICATIONS OR PERSONAL INFORMATION MAY BE READ OR INTERCEPTED BY OTHERS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT BY SUBMITTING COMMUNICATIONS OR OTHER CONTENT TO US AND/OR BY POSTING INFORMATION ON THE SITE NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED, OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND SPIRIT PARTIES OTHER THAN PURSUANT TO THESE TERMS.

 

NOTWITHSTANDING THE FOREGOING, THIS SECTION DOES NOT EXPAND OR LIMIT (A) ANY EXPRESS, WRITTEN PRODUCT WARRANTY OR RELATED DISCLAIMERS THAT ARE PROVIDED BY SPIRIT PARTIES OR THEIR SUPPLIERS WITH REGARD TO A PHYSICAL PRODUCT SOLD BY SPIRIT PARTIES TO YOU, OR ANY WARRANTY ON A PHYSICAL PRODUCT TO THE EXTENT REQUIRED BY APPLICABLE LAW; (B) SPIRIT PARTIES’ LIABILITY FOR PERSONAL INJURY TO YOU CAUSED BY SPIRIT PARTIES TO THE EXTENT NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW; OR (C) ANY CAUSE OF ACTION YOU MAY HAVE AGAINST SPIRIT PARTIES THAT IS NOT WAIVABLE OR CANNOT BE LIMITED UNDER APPLICABLE LAW.

 

9. INDEMNIFICATION

 

You agree to defend, indemnify, and hold harmless Spirit Parties from and against any and all claims, liabilities, damages, losses, costs, and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (a) your breach or alleged breach of these Terms; (b) your UGC; (c) your use of the Site; (d) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities; (e) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property, or privacy right; (f) any misrepresentation made by you; or (g) any interaction you have with any other user(s). Spirit Parties reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You will not in any event settle any claim without the prior written consent of Spirit Parties and you agree to cooperate with our defense of any such claim.

 

10. DISPUTE RESOLUTION

 

Certain portions of this Section 10 are deemed to be a “written agreement to arbitrate” pursuant to the U.S. Federal Arbitration Act. You and Spirit agree that that this Section 10 satisfies the “writing” requirement of the U.S. Federal Arbitration Act. This Section 10 can only be amended by mutual agreement.

 

A. Resolving Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, the Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution. Our notice to you will be sent based on the most recent contact information that you provide us. If no such information exists, or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent to:

 

Spirit Halloween Superstores LLC

Attn: Legal Department

6826 Black Horse Pike

Egg Harbor Township, NJ 08234

 

For a period of sixty (60) days from the date of receipt of notice from the other party, Spirit and you will engage in a dialogue to attempt to resolve the Dispute, though nothing will require either you or Spirit to resolve the Dispute in this manner.

B. Arbitration. If we cannot resolve a Dispute as set forth in Section 10(A) within sixty (60) days of receipt of the notice, then to the fullest extent not prohibited by applicable law, any and all disputes between you and Spirit of any nature or arising out of any transaction or relationship, including but not limited to those related to this Site or these Terms, shall be resolved by arbitration in accordance with the provisions of this Section. BY USING THE SITE AND AGREEING TO ARBITRATION YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. You and Spirit expressly delegate to the arbitrator the authority to determine the arbitrability of any dispute, including the scope, applicability, validity, and enforceability of this arbitration provision.

 

You may begin an arbitration proceeding by sending an email to legaldept@spirithalloween.com or sending a letter requesting arbitration to:

 

Spirit Halloween Superstores LLC

Attn: Legal Department

6826 Black Horse Pike

Egg Harbor Township, NJ 08234

 

Disputes will be resolved solely by binding arbitration in accordance with the then-current consumer Arbitration Rules of the American Arbitration Association (“AAA”). If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to arbitrate the Dispute, then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Spirit consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Spirit to pay a greater portion or all of such fees and costs in order for this Section 10(A) to be enforceable, then Spirit will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will (a) apply applicable law and the provisions of these Terms and any Additional Terms; (b) determine any Dispute according to applicable law and facts in the record and no other basis; and (c) issue a reasoned award only in favor of the party seeking relief and only to the extent such relief is warranted by that party’s claim. This arbitration provision shall survive termination of these Terms.

C. Class Action Waiver. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE JOINED OR CONSOLIDATED WITH ANY OTHER ARBITRATIONS OR OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. YOU AND SPIRIT 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.

 

11. APPLICABLE LAW

 

These Terms and any applicable Additional Terms will be governed by and construed in accordance with, and any Dispute will be resolved in accordance with, the laws of the State of New Jersey, United States of America without regard to its conflicts of law provisions that might apply the laws of another jurisdiction.

 

12. ASSIGNMENT

 

Spirit may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Spirit.

 

13. COMPLETE AGREEMENT AND SEVERABILITY

 

Unless otherwise specified, these Terms constitute the entire agreement between you and Spirit. If any part of these Terms is held illegal or unenforceable, the remainder of the Terms shall be unaffected and shall continue to be fully valid, binding, and enforceable. The failure of Spirit to act with respect to a breach by you or others does not waive Spirit’s right to act with respect to subsequent or similar breaches. Spirit’s failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing signed by an officer of Spirit.

 

14. INVESTIGATIONS; COOPERATION WITH LAW ENFORCEMENT

 

Spirit reserves the right to investigate and prosecute any suspected or actual violations of these Terms. Spirit may disclose any information as necessary or appropriate to satisfy any law, regulation, legal process, or government request.

 

15. CALIFORNIA CONSUMER RIGHTS AND NOTICES

 

Residents of California are entitled to the following information:

·       You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 1625 North Market Blvd., Suite N 112, Sacramento, California, 95834, or by telephone at (916) 445-1254. Hearing-impaired users can reach the Complaint Assistance Unit at TDD (800) 326-2297 or TDD (916) 322-1700. Their website is located at: http://www.dca.ca.gov.

 

·       Spirit’s return and refund policy is available here.

·       The legal name under which Spirit conducts business is Spirit Halloween Superstores LLC and Spirit’s business address is [6826 Black Horse Pike, Egg Harbor Township, NJ 08234]

·       California residents who have purchased items from the Site may receive verification of this information by email by contacting us at legaldept@spirithalloween.com.

California Transparency in Supply Chains Act Disclosure

Spirit supports the right of all individuals to be free from slavery in the workplace. We abhor the practice of human trafficking and slavery and applaud efforts being made globally to eliminate this practice.

·       Verification: Spirit has a program that assesses the risk of human trafficking and slavery posed by our direct source vendors. An independent third-party verifier will administer the program.

·       Audits: Spirit utilizes an independent, third party auditor to confirm that our international suppliers comply with all employment laws. The audits are announced. Spirit does not conduct audits of our suppliers here in the United States.

·       Certification: Spirit requires all of its suppliers to be compliant with all local and national laws governing slavery and human trafficking in the countries in which they do business. By accepting a purchase order or contract, every supplier certifies that it conducts business in compliance with local and national laws related to employment, and its failure to do so is a breach of the contract.

·       Internal accountability: Spirit has adopted a policy for our employees and contractors that sets forth our expectations and standards with regard to the fair treatment of our employees. Spirit’s policy specifically prohibits forced labor. Spirit provides training on these standards for our employees and management, and we provide a confidential hotline for employees to report concerns related to their fair treatment and other employment related issues. We prohibit retaliation against anyone who in good faith reports a possible violation of our policy.

·       Training: All of our employees who have direct responsibility for international supply chain management receive internal and external training on slavery and human trafficking issues. Our international buying team receives this training in connection with every international buying trip, which typically occur several times each year.

·       Spirit also offers human trafficking and slavery training to its suppliers.

 

16. INTERNATIONAL ISSUES

 

Spirit controls and operates the Site from its U.S.-based offices. If you use the Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content (to the extent local laws apply). We reserve the right to limit the availability of the Site and/or the provision of any content, program, product, service, or other feature described or available on the Site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms, or Additional Terms, or to any sale of goods carried out as a result of your use of the Site.

 

17. EXPORT CONTROLS

 

Software related to or made available by the Site may be subject to export controls of the U.S.A. that prohibit software from the Site from being downloaded, exported, or re-exported (a) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed (e.g., Cuba, Iraq, Libya, North Korea, Iran, Sudan, and Syria), or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (c) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations. You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by U.S law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including, without limitation, as set forth in subsections (a) – (c) above.

 

18. ELECTRONIC CONTRACTING

 

You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that any time you electronically transact, agree, or consent via the Site it is intended to be an electronic signature which binds you as if you had signed on paper. You agree that your use of the Site, other than to read the Terms (or Additional Terms) and Privacy Policy, constitutes agreement to the Terms, and any applicable Additional Terms, then posted without further action by you.

 

19. TERMINATION; SURVIVAL

 

We may suspend or terminate your access to the Site, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason, and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Spirit under these Terms or any applicable Additional Terms. Upon suspension or termination of your access to the Site, or upon notice from Spirit, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Site. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Spirit in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, jury waiver, and mandatory arbitration.

 

20. CONTACT US

 

Any questions regarding these Terms may be directed to legaldept@spirithalloween.com.