This website is operated by Harpy Hats. As used in this Agreement, the terms “Harpy Hats”, “we”, “us” and “our” refer to Harpy Hats, LLC, a Texas Limited Liability Company and its parents, subsidiaries, and affiliates (if any). Harpy Hats offers this website, currently located at www.harpyhats.com(including without limitation the home page and, except as otherwise expressly stated in these Terms of Service, all other pages under the same top level domain name, as well as any mobile version of the website) (collectively, the “Website”) and all information, tools and services available on or through this Website (collectively, the “Services”) to you, the user. These Terms of Service apply to all users of the Services, including without limitation, browsers, vendors, customers, merchants, or contributors of content.
Please read these Terms of Service before accessing or using our Services. By using the Services, logging into your account, clicking to accept or agree to the Terms of Service when this option is made available to you, or purchasing something from us, you agree to be legally bound by the following terms and conditions (“Terms of Service” or “Terms”), accept the terms of our Privacy Policy, and agree to be bound by any other terms and conditions referenced herein or in any other documents and/or available by hyperlink directly or indirectly through these Terms of Service, including our Returns & Exchange Policy, all of which together constitute our agreement with you (the “Agreement”).
THESE TERMS OF SERVICE CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS VARIOUS CONDITIONS, LIMITATIONS, AND EXCLUSIONS, INCLUDING LIMITATIONS OF LIABILITY IN SECTION 15 AND AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 18.
BY AGREEING TO THESE TERMS OF SERVICE, YOU AGREE TO RESOLVE ALL DISPUTES THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIS, WHICH MEANS THAT YOU WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND THAT YOU WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS.
1. CHANGES TO THE TERMS OF SERVICE
If you do not agree to all the terms and conditions of this Agreement, then you may not access or use the Services. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, add, remove, or otherwise change any part of this Agreement from time to time in our sole discretion by posting notice of such changes to our Website or otherwise by providing you with adequate notice, such as by emailing you at the email address you provided to us. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Website following the posting of any changes constitutes acceptance of those changes.
2. NO USE OF THE SERVICES FOR UNDER-AGED PERSONS
You must be 18 years or older to use our Services. Minors under 18 and at least 13 years of age are only permitted to use our Services through an account owned by a parent or legal guardian with their appropriate permission and under their direct supervision. Children under 13 years of age are not permitted to use our Services. You represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use our Services.
3. PRIVACY
All information we collect on the Services is governed by these Terms of Service and our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
4. ACCOUNT SECURITY
To access the Services or certain portions thereof, you may be asked to provide certain registration details or other information to us. By creating an account, you represent and warrant that the information you provide is accurate and complete. You are responsible for maintaining the confidentiality of your account passwords, and you are solely responsible for all purchases and other activities that occur under your account. We reserve the right to require you to change your password if we believe your account is no longer secure. You understand that the information you provide (not including credit card information), may be transferred unencrypted and involve: (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
5. OUR PRODUCTS AND SERVICES.
(a) Product Availability
Certain products or services may be available for purchase exclusively through the Services. These products or services may have limited quantities and are subject to return or exchange only according to our Returns & Exchange Policy. We reserve the right, but are not obligated, to limit the sales of our products or services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis.
(b) Price or Description Errors. We strive to display accurate price information; however, we may occasionally make typographical errors, inaccuracies or omissions that may relate to product or service descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies or omissions and to cancel orders arising from such occurrences. We undertake no obligation to update, amend or clarify information in the Services or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services or on any related website, should be taken to indicate that all information in the Services or on any related website has been modified or updated. We have made every effort to display as accurately as possible the colors and images of our products that appear in the Services. We cannot guarantee that your computer monitor’s display of any color will be accurate.
6. PRODUCT PAYMENT TERMS
(a) Ordering
You agree that your order is an offer to buy the product(s) listed in your order under these Terms of Service. All orders must be accepted by us in order to become a binding obligation to sell you products, and we may choose not to accept any orders in our sole discretion. After receiving your order, we will send you a confirmation email at the email address you provided to us for your order with your order number and details of the items you have ordered. Acceptance of your order will take place when we send you that email confirmation. When your order ships, we will send you an email with tracking information for your order. Order fulfillment is subject to product availability. Additionally, order fulfilment and delivery is subject to factors outside of Harpy Hats’ control and Harpy Hats does not guarantee delivery by any certain date. The inclusion of a product in our Services does not mean that such product is or will be available for purchase through our Services.
(b) Prices
All prices, fees, discounts, and promotions posted on the Services are subject to change without notice. Posted prices are in U.S. dollars. We reserve the right to change prices at any time without notice to you, provided that any changes made after your order is submitted will not apply retroactively.
The amount of tax charged on your order will depend on the item purchased and the destination of the shipment. Certain items may be exempt from sales tax, depending on state and local laws. The sales tax actually charged will be calculated and will reflect applicable state and local taxes after you have entered your shipping address, selected the shipping method, and continue to payment. If an item is subject to sales tax in the state to which the order is shipped, tax is generally calculated on the total selling price of each individual item, which can include shipping and handling fees.
We will attempt to collect applicable taxes where we have determined we have a duty to do so. We are not required to, and do not, collect taxes in all states. You may have a duty to directly report and pay taxes if we do not collect such taxes. It is understood that you are ultimately responsible for any use, ad valorem, and other applicable taxes and fees related to your purchase.
(c) Payment Methods
We accept most major credit cards for all purchases. You represent and warrant that
(i) the credit card information you supply to us is true, correct, and complete;
(ii) you are duly authorized to use such credit card for the purchase;
(iii) charges incurred by you will be honored by your credit card company; and
(iv) you will pay the total purchase price and all applicable taxes, if any, at the time your order is accepted. By submitting your credit card information, you authorize us, and any third party collecting this information on your behalf, to provide your information to third parties to facilitate your requested transaction.
(d) Risk of Loss
You are solely responsible for providing us with a correct, safe shipping address accessible by common carriers during the order checkout process. You hereby release us from any and all liability if the delivery address provided to the Website is incorrect or if you fail to collect the order shipment from the delivery address provided to the Website. Title to, and the risk of loss of, the product(s) ordered transfers to you upon delivery to the delivery address provided to the Website.
(e) Cancellations
We cannot guarantee requests for changes or cancellations once you submit your order on the Website, because we try to prioritise promptly processing and shipping your order.
(h) Reserved Rights
Terms of payment and eligibility to purchase our products are within our sole discretion, and we reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. 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. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address and phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors. You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
(i) Discounts and Promotions
From time to time we will share current information about our promotions, sales, or discount code offers. Any promotion code or offer provided by us may not be used in conjunction with any other promotion code or offer, past or present. Introductory offers are only available to new users of the Services, except where expressly stated otherwise.
(j) Notice to California Customers
Under California Civil Code Section 1789.3, California users may be entitled to the following consumer rights notice: If you have a question or comment about our online shop, you may contact us by writing to us as provided in Section 26 below or by calling us at (313) 307-4733. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210.
7. ADDITIONAL TERMS AND THIRD PARTY SERVICES
Portions of, or certain services available on, our Services, may be subject to additional terms between you and Harpy Hats (“Additional Terms”) that will be described in separate agreements, rules, or policies posted on the applicable portions of our Services and are incorporated herein by reference. Additional terms may include the following:
(a) Certain features or functionality of our Services may be subject to Additional Terms made available on the applicable portions of our Services. For example, our Returns Policy contains terms and conditions that supplement these Terms and govern your return and exchange of products from us. To the extent that the terms and conditions of any such Additional Terms conflict with these Terms, the applicable Additional Terms will control for the applicable features and functionality.
(b) In addition, Harpy Hats or its authorised partners may operate sweepstakes, contests and promotions (“Promotions”) through our Services. You should carefully review the Additional Terms containing the official rules (“Official Rules”) of each Promotion in which you participate, as they contain additional important information about Harpy Hats’ rights to and ownership of the submissions you make in connection with your participation in such Promotions. To the extent that the terms and conditions of such Official Rules conflict with these Terms, the terms and conditions of such Official Rules for each Promotion will control for that Promotion.
8. THIRD-PARTY TOOLS AND LINKS.
(a) Third-Party Tools
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools. Any use by you of optional tools offered through our Services is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which such tools are provided by the relevant third- party provider(s).
(b) Third-Party Links
Certain content, products and services available via our Services may include materials from third parties. Third-party links on our Services may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any materials, products, or services of third parties or any transactions made in connection with any third-party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the applicable third party.
9. INTELLECTUAL PROPERTY RIGHTS
The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, tables, algorithms, formulas, displays, images, video, and audio, and the design, selection, and arrangement thereof) are subject to protection by Intellectual Property Rights. You acknowledge that Harpy Hats and its licensors (excluding you) own all right, title, and interest in and to the Services, including without limitation all related Intellectual Property Rights. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, rights of publicity, industrial design law, and any similar law, and any and all other proprietary rights of any kind, and any and all applications, renewals, extensions, and restorations relating to any of the above, now or hereafter in force and effect worldwide.
All trademarks, trade names, service marks, slogans, designs, logos, and trade dress appearing on or in connection with the Services are the property of their respective owners, including, in some instances, us and/or our licensors. Specifically, the name “Harpy Hats” and any other Harpy Hats marks, slogans, logos and designs used in connection with our Services are trademarks, service marks or trade dress of Harpy Hats and/or our affiliates, subsidiaries, parents, or related companies in the U.S. and other countries. No license to, or right in, any such trademarks, trade names, service marks, slogans, designs, logos, trade dress or other Intellectual Property Rights of Harpy Hats and/or other parties is granted to, or conferred upon, you. You must not use any such Intellectual Property Rights without the prior written permission of Harpy Hats, except to the extent any such restriction is not permitted by applicable law.
Harpy Hats reserves the right to enforce its Intellectual Property Rights to the fullest extent permitted by law, including seeking monetary damages, civil penalties and criminal prosecution.
10. USER CONTENT AND SUGGESTIONS
Harpy Hats may include features on our Services that allow you to share your product reviews, comments, communications, or content (“User Content”) with us and with other users of our Services. You agree you will not send, upload or transmit any User Content of any type that violates any right of any third party or violates these Terms. You further agree that such User Content will not be considered or treated as confidential and may be seen, read, used or re-transmitted by Harpy Hats or other users of our Services. You explicitly represent and warrant that you are the owner of any User Content that you submit or cause to be submitted or have all rights and licenses necessary regarding such User Content, and hereby grant Harpy Hats a royalty-free, perpetual, irrevocable, unrestricted, worldwide, transferable, nonexclusive license to use, reproduce, create derivative works from, modify, publish, edit, translate, adapt, transform, distribute, transmit, broadcast, publicly perform, and publicly display such User Content in any media or medium, or any form, format or forum, now known or hereafter developed. Harpy Hats may sublicense its rights to any User Content through multiple tiers of sublicenses. You irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials for such User Content. Harpy Hats assumes no responsibility or liability for any User Content posted by you or any third party.
If you elect to provide User Content or any other ideas, feedback or other suggestions to us relating to us, our Services, or our products and services (“Suggestions”), you grant us all necessary rights to use such Suggestions for any purpose and acknowledge and agree that Harpy Hats has no financial, credit or other obligations to you with respect to such Suggestions and may use them, or not use them, in our sole discretion and for any purpose whatsoever.
11. USER OBLIGATIONS
In addition to the other prohibitions set forth in these Terms of Service, you agree to not use the Services:
(a) In any way that violates any applicable international, federal, local or state statute, regulation, rule, order, treaty or other law;
(b) To infringe upon or violate our Intellectual Property Rights or those of others or to store or transmit infringing, libellous or otherwise unlawful or tortious material or material in violation of third-party privacy rights;
(c) To harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability;
(d) To spam, phish, pharm, pretext or engage in similar acts, including without limitation to impersonate or attempt to impersonate Harpy Hats, a Harpy Hats employee, another user, or any other person or entity;
(e) To submit false or misleading information about yourself and/or your affiliation with any other person or entity; or
(f) To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Harpy Hats or users of the Services, or expose them to liability. Additionally, you agree not:
(g) To sell, resell, sublicense, transfer, or distribute the Services;
(h) To upload or transmit viruses, worms, Trojan horses, time bombs, spyware, or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Services or of any related website, other websites, hardware, software, or equipment, or the Internet;
(i) To use any robot, spider, or other automatic device, process, or other means to crawl, scrape, or otherwise access the Services, or use any means to reproduce or alter the navigational structure or presentation of the Services, for any purpose, including monitoring or copying any of the material on the Services, without the express prior written consent of Harpy Hats;
(j) To interfere with or circumvent the security features of the Services or any related website, other websites, or the Internet;
(k) To attempt to gain unauthorized access to the Services, the server on which the Services are stored, or any other server, computer, or database;
(l) To modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure, ideas, know-how, or algorithms related to, any portion of the Services, except to the extent any such restriction is not permitted by applicable law;
(m) To frame or mirror any part of the Services for any purpose without the express written permission of Harpy Hats;
(n) To remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services; or
(o) To otherwise interfere or attempt to interfere with the security, integrity, or performance of the Services in any way. We reserve the right to remove any information or other content, in whole or in part, that may be posted to our Services and that we find, in our sole discretion, to be unacceptable, undesirable, inappropriate or in violation of this Agreement.
12. TERMINATION
(a) Termination
You may terminate this Agreement at any time by notifying us that you no longer wish to use our Services, or when you cease using our Services. If in our sole judgment you fail, or we suspect that you have failed, to comply with any term or provision of this Agreement, we may suspend or disable your access to our Services or any portion thereof at any time without notice, and you will remain liable for all amounts due up to and including the date of termination. If we disable your access, you will not be able to reestablish access without our permission.
(b) Effect of Termination
Your rights under this Agreement will terminate immediately and automatically, with or without notice in our sole discretion, if we cease to support our Services. The rights and obligations of the parties under Sections 9 (Intellectual Property Rights) through 11 (User Obligations) and 14 (Disclaimer of Warranties) through 26 (Legal Notices; Your Comments and Concerns) shall survive the expiration or termination of this Agreement for all purposes.
13. CHANGES TO THE SERVICES
We reserve the right at any time to suspend, discontinue, update, or otherwise change all or any portion of the Services for you or any or all other users, with or without notice, at any time and for any reason. We shall not be liable to you or to any third-party the effect that any such changes or other actions may have on you. We are under no obligation to continue to support our Services in any way or to provide you with updates or error corrections. Any new features added to the Services will be governed by this Agreement, including any Additional Terms we may impose on those features.
14. DISCLAIMER OF WARRANTIES
YOU UNDERSTAND THAT OUR SERVICES, OUR PRODUCTS AND SERVICES, CONTENT (INCLUDING USER CONTENT) AND ANY THIRD- PARTY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY, ARISING THROUGH COURSE OF PERFORMANCE, OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED OR STATUTORY WARRANTIES OF TITLE, MERCHANTABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. WE DO NOT WARRANT THAT:
(a) THE SERVICES OR RESULTS OF THE SERVICES WILL BE ACCURATE, RELIABLE, COMPLETE, TIMELY, OR ERROR-FREE;
(b) THAT DEFECTS OR ERRORS WILL BE CORRECTED;
(c) THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR SECURE;
(d) THAT OUR SERVICES ARE SECURE OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR
(e) THAT THE SERVICES OR RESULTS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. WE DISCLAIM ALL EQUITABLE WARRANTIES. YOU USE OUR SERVICES, PRODUCTS, AND ANY THIRD PARTY SERVICES SOLELY AT YOUR OWN RISK.
15. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HARPY HATS OR OUR PARENTS, SUBSIDIARIES, AFFILIATES OR OTHER RELATED COMPANIES, OR OUR OR THEIR RESPECTIVE LICENSORS, SERVICE PROVIDERS, SUPPLIERS, EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, OR DIRECTORS (COLLECTIVELY, THE “HARPY HATS PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR DAMAGES RESULTING FROM EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER BASED IN TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, STRICT LIABILITY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR YOUR REMEDY OTHERWISE FAILS IN ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE GREYSON CLOTHIER PARTIES’ AGGREGATE LIABILITY FOR ANY DAMAGES EXCEED ONE HUNDRED US DOLLARS (US $100.00). NO CLAIM OR ACTION ARISING FROM OR CONCERNING OUR SERVICES OR OTHERWISE HEREUNDER MAY BE BROUGHT LATER THAN ONE (1) YEAR FROM THE DATE THE CLAIM OR CAUSE OF ACTION AROSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION, LIMITATION, OR DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, DAMAGES, OR LIABILITY IN WHOLE OR IN PART. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU.
16. INDEMNIFICATION
Except to the extent prohibited by law, you agree to indemnify, defend and hold harmless the Harpy Hats Parties from and against any and all claims, demands, actions, suits, liabilities, damages, losses, costs, penalties, fines, and settlements (including reasonable attorneys’ fees and experts’ fees) arising out of or relating to: (a) your violation of the Agreement; (b) your use of, or activities in connection with, the Services; (c) any allegation that User Content from you infringes, misappropriates, or otherwise violates the intellectual property, publicity, privacy or other proprietary rights of others or violates these Terms of Service; or (d) your violation of any law or the rights of a third party.
17. GOVERNING LAW
All matters relating to the Services or the Agreement, and any dispute or claim between the parties arising out of or related to the Services or the Agreement (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of Texas and applicable federal law, without giving effect to any conflict of law provision or rule (whether of the State of Texas or any other jurisdiction).
18. DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. YOU AND HARPY HATS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
(a) You hereby agree that any claim or dispute between you and Harpy Hats, whether brought by you or by Harpy Hats, arising out of or relating in any way to this Agreement or your use of our Services must be resolved through final, binding arbitration, except that either you or we may assert claims in small claims court if those claims qualify under applicable law. In addition, either you or we have the option to bring claims in court to enjoin infringement or other violation of Intellectual Property Rights without seeking damages. This arbitration obligation applies regardless of whether the claim or dispute involves a warranty, tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory. Unless you opt-out of arbitration as set forth below, the arbitrator, and not any federal, state or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, scope, unconscionability, arbitrability, enforceability or formation of this arbitration provision, including any claim that all or any part of this arbitration provision is void or voidable. There is no judge or jury in arbitration, the arbitration will be subject to different rules than the rules that would apply in court, and court review of arbitration awards is very limited. However, an arbitrator can award on an individual basis the same damages and other relief as a court (including injunctive and declaratory relief and statutory damages), and must follow this Agreement, as a court would.
(b) All arbitrations under this Agreement shall be conducted on an individual, and not on a class-wide, basis, and an arbitrator shall have no authority to certify a class or award class-wide relief. The arbitrator is authorized only to award relief on behalf of the individual parties and only to their extent of their individual claims. You acknowledge and agree that unless otherwise agreed in writing by you and Harpy Hats, with regard to any claims hereunder, you may not seek to, and an arbitrator or court may not, join or consolidate your claims with any other similar claims. You agree you will not proceed in any court or arbitration proceedings as a representative of others (including in the capacity of a private attorney general), join in any court or arbitration proceedings brought by any other person, and understand that you may not be included as a member of any class that may be certified by a court or arbitrator. Your waiver of your rights to bring or participate in court proceedings and as a representative or member of a class applies specifically, but is not limited to, claims brought under California’s Unfair Competition Law, False Advertising Act and its Consumer Legal Remedies Act, Ohio’s Unfair and Deceptive Trade Practices Act and any other state consumer protection laws.
(c) Before commencing any arbitration proceedings under this Agreement, a party must first send to the other a written notice of dispute (“Notice”). Your Notice to Harpy Hats must be sent to the address stated in Section 26 below. If a party’s claim is not resolved within sixty (60) days of delivery of the applicable Notice, you or we may commence arbitration proceedings in accordance with this Agreement. The arbitration of any claim or dispute hereunder (including whether a valid arbitration agreement exists and whether it covers the dispute) shall be conducted by a single, neutral arbitrator administered by JAMS or its successor (“JAMS”) and conducted pursuant to the then-current Streamlined Arbitration Rules and Procedures (available at https://www.jamsadr.com/ rules-streamlined-arbitration/) and, if you are an individual, in accordance with JAMS’ Consumer Arbitration Minimum Standards (available at https://www.jamsadr.com/consumer-minimum-standards/) (as applicable, the “JAMS Rules”). If the JAMS Rules conflict with any portion of this Agreement, this Agreement shall control. You and Harpy Hats shall mutually agree on a neutral arbitrator, provided that if the parties cannot agree on an arbitrator within ten (10) days, then JAMS will choose the arbitrator. The arbitration of any claims or disputes hereunder shall be conducted in Houston, TX, except that if you are an individual the arbitration may be conducted in the county or parish of your primary residence. You or we also may choose to have the arbitration conducted by telephone, based on written submissions, or in person at another mutually agreed location. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules.
(d) The arbitrator shall apply the law of the State of Texas as stated above, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator shall be empowered to award the prevailing party any remedy available at law or in equity not specifically precluded by this Agreement, including without limitation injunctive or declaratory relief, specific performance, and damages. The arbitrator’s award will consist of a written statement stating the disposition of each claim. The award also will provide a concise written statement of the essential findings and conclusions on which the award is based. Each party shall pay its own fees and costs of its own attorneys, experts and witnesses incurred in connection with any arbitration or court proceeding between the parties, notwithstanding any provision awarding attorneys’ fees to a prevailing party that may be a part of any statute under which you or we may bring a claim. The award of the arbitrator may be entered as a judgment in any court of competent jurisdiction.
(e) YOU AND WE SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF US EXPRESSLY WAIVES THE RIGHT TO BRING A LAWSUIT IN COURT BASED ON ANY CLAIMS OR DISPUTES DESCRIBED IN SECTIONS 18(A) AND (B) ABOVE, AND THAT YOU AND WE EXPRESSLY WAIVE THE RIGHT TO HAVE SUCH CLAIMS OR DISPUTES RESOLVED BY A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION. AS SUCH, YOU AND WE HEREBY AGREE TO RESOLVE ANY AND ALL SUCH CLAIMS DESCRIBED ABOVE VIA INDIVIDUAL BINDING ARBITRATION PER THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION 18(A)-(E).
(f) You may opt-out of Sections 18(a)-(e) by sending a notice (“Rejection Notice”) to Harpy Hats no later than sixty (60) days after your first consent to this Agreement or to any subsequent revisions to this Section 18. If you opt out of a subsequent revision, you will remain bound by the prior version of this Section unless you previously opted out of that version. You must mail the Rejection Notice by certified mail return receipt requested or messenger service (g. Federal Express) to the address stated in Section 26 below. In the event of any dispute concerning whether you provided a Rejection Notice within sixty (60) days, you must provide a signed receipt confirming Harpy Hats received the Rejection Notice within sixty (60) days. You may opt out of this Agreement in its entirety by not using the Services.
(g) To the extent that a dispute is not subject to arbitration under this Section 18, such dispute must be resolved exclusively through an action brought in the appropriate state or federal court located in Houston, Texas and both parties irrevocably consent to the jurisdiction and venue of such courts for the adjudication of any non-arbitrable claims and waive any objection to such courts on any basis, including without limitation inconvenience of the forum. You and we expressly waive the right to a jury trial in connection with any such lawsuit and agree that no such lawsuit can be brought as a class action or other representative action.
19. RELATIONSHIP OF THE PARTIES
The Agreement does not create a partnership, joint venture, employment, agency, or fiduciary relationship between you and Harpy Hats or any of Harpy Hats’ parents, subsidiaries, affiliates, or other related companies. Harpy Hats and you are independent contractors and neither party will have the power to bind the other or to incur obligations on the other’s behalf without the other party’s prior written consent.
20. NO THIRD-PARTY BENEFICIARIES
The Agreement is intended for the sole benefit of the parties to the Agreement and their respective successors and permitted assigns, and nothing in the Agreement, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
21. ASSIGNMENT
You may not assign or transfer your rights or obligations under the Agreement without our prior written consent. Any purported assignment shall be null and void. We may assign the Agreement or transfer any rights or obligations hereunder at our sole discretion and without restriction.
22. ENTIRE AGREEMENT; AMENDMENT
The Agreement, including these Terms of Service, our Privacy Policy, and any other terms or policies of Harpy Hats that are linked to or referenced in them or that reference any of them, constitutes the entire agreement between you and Harpy Hats and supersedes any prior or contemporaneous understandings, agreements, representations, and warranties, whether oral or written, regarding the Services (including, but not limited to, any prior versions of the Terms of Service). To the extent there is a conflict between these Terms of Service and the Privacy Policy, the Privacy Policy will control with respect to any privacy matter. Harpy Hats may amend these Terms of Service as provided in Section 1. You cannot amend these Terms of Service or any other aspect of the Agreement except through a mutual, written agreement signed by you and an authorized representative of Harpy Hats that expressly states that it is amending the Agreement.
23. UNTERPRETATION
The headings used in the Agreement are included for convenience only and will not limit or otherwise affect the Agreement. Any ambiguities in the interpretation of the Agreement shall not be construed against the drafting party.
24. WAIVER AND SEVERABILITY
No waiver by us of any term or condition set out in the Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition. The failure of us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized Harpy Hats representative. In the event that any provision of the Agreement is determined by a court or other tribunal of competent jurisdiction or an arbitrator to be unlawful, invalid or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from the Agreement, such determination shall not affect the validity and enforceability of any other remaining provisions.
25. ELECTRONIC COMMUNICATIONS NOTICE
Sending us emails and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email or the Website, satisfy any legal requirement that such communication be in writing. In order to retain copies of any electronic communications, you must have a printer or data storage device. If you have a printer, you may print paper copies of any such communications for your own use. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE WEBSITE. You hereby waive any rights or requirements under any statutes, regulations, rules, orders, treaties, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
26. LEGAL NOTICES; YOUR COMMENTS AND CONCERNS
All legal notices to us must be in writing and must reference these Terms of Service. We may notify you using the information you provided, including by email. Service will be deemed given on the date of receipt if delivered by email to wingsout@harpyhats.com
All other feedback, comments, requests for technical support, and other communications from you about the Services or the Agreement should be sent to us at: wingsout@harpyhats.com
Updated: November 14, 2022