Loungefly, LLC. Terms and Conditions

LOUNGEFLY TERMS AND CONDITIONS

Welcome to Loungefly.com. This website is maintained by Funko, LLC ("Funko"). Funko also owns and maintains funko.com along with our related websites, mobile applications, and other services provided by us (“Service”). These Terms and Conditions govern your use of the Service.

 

Binding Contract

THIS IS A BINDING CONTRACT BETWEEN YOU AND FUNKO. BY CLICKING “ACCEPT”, OR OTHERWISE ACCESSING AND USING THE SERVICE, YOU ACCEPT AND AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, TO BE BOUND BY THESE TERMS AND THE FUNKO PRIVACY POLICY LOCATED AT FUNKO.COM/PRIVACY-POLICY (TOGETHER, THESE “TERMS”). YOU ARE NOT PERMITTED TO ACCESS OR USE THE SERVICE OR ANY OF THE FEATURES OR PRODUCTS AVAILABLE THROUGH THE SERVICE UNLESS YOU AGREE TO THESE TERMS. PLEASE READ THEM CAREFULLY. YOU MAY NOT PROCEED TO THE SERVICE UNTIL YOU HAVE READ THESE TERMS AND SIGNIFIED YOUR ACCEPTANCE OF THEM. YOUR USE OF THE SERVICE CONSTITUTES ACCEPTANCE OF THESE TERMS.

Funko may periodically modify these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon the earlier of your receipt of notice or your acceptance of the modified Terms. Immaterial modifications are effective upon publication. If you do not agree to any change to the Terms, you must cease use of the Service. Your continued access and use of the Service signifies your acceptance of the Terms as modified.

Funko may terminate your use of the Sites and its contract with you if you do not comply with these Terms.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 24, YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND FUNKO MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND FUNKO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 24.).

  1. Funko Products and Services

The Service provides you with the ability to access various Funko products, content and services, including Funko collectibles, software, games and customized products. From the Service, learn about upcoming Funko events and promotions, share information with other Funko fans, and manage your Funko collections. All of the products, content and services accessible through the Service are for your personal, non-commercial use only and your access to and use of them are subject to these Terms.

The products, content, features, and services available through the Service are subject to change and, in some cases, may be subject to additional terms, policies, rules, or guidelines that we may post on or link to from the Service (“Supplemental Terms”). For example, additional terms apply to, contests and software accessible through the Sites. Funko will notify you of these Supplemental Terms in connection with the applicable product or service. All Supplemental Terms are incorporated by this reference into, and made a part of, these Terms.

Some of the features of the Service require you to create a user profile or user account and some require you to pay a fee. Funko will notify you when this is required. In addition, when you access the Sites through a mobile network, your mobile network provider's messaging, data and other fees may apply.

  1. Third Party Products/Services and Websites

In addition to Funko products, the Service may provide you with the ability to access products, content, and services offered by or maintained by third parties. In some cases these may be accessible directly through the Service. In others, access may be via links from the Service to third party websites. Regardless, Funko is not responsible for the products, content or services available from third parties - even if they are provided through the Service - or for how third-party sites are managed or the terms applicable to your use of them. Your access to and use of these third-party materials and websites is governed by the terms established by their owners/operators. You are responsible for reading those terms before you access or use the third-party products or websites. Funko accepts no responsibility for any third-party materials or websites or for any losses or damages that may arise from your use of them. If you decide to access or use any third-party materials or websites, you do so exclusively at your own responsibility and risk and you waive and release Funko from all claims associated with them. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third-party licenses or to limit your use of Third Party Components under those third party licenses.

  1. Proprietary Rights and License

All of the products, content and services available through the Sites are protected by intellectual property or other laws, and are property of Funko or its third-party licensors. This includes all products, product descriptions, videos, text, graphics, logos, images, photographs, artwork, derivative works, software, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), and any other material or information published on or used in connection with the Service (collectively, the “Service Content”). Similarly all trademarks, service marks, trade names, trade dress and other indicia identifying the Sites, Funko or the products or services available through the Sites ("Marks") are owned by Funko or it licensors. Except as expressly authorized by Funko, you do not obtain any rights in any of the products, content, or services available on the Service or other Service Content or the Marks by your use of the Service or otherwise. All rights in the products, content or services and other Service Content and Marks are reserved to their respective owners. This paragraph will survive termination of the Terms.

Subject to your complete and ongoing compliance with these Terms, Funko grants you a personal, non-commercial use, a non-transferable, non-sublicensable, revocable, and non-exclusive limited license to access and use the Service for your own personal, non-commercial use. This license includes the right to (a) (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service, and (c) print screen shots of products, product descriptions, and similar materials for your personal reference use, provided you do not delete or modify any copyright or other proprietary notices. Funko may terminate this license upon notice to you, in which case you must cease all use of the licensed materials. Except as otherwise expressly permitted, you are not permitted to make any other use of the Service or the Service Content.

In addition to the above license, some products, content and services may have their own license terms. For example, videos, software, and games will all have their own license terms which are in addition to these Terms.

If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant Funko an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. This paragraph will survive termination of the Terms.

  1. License Restrictions

As above, the license granted to you by Funko is limited. It is also subject to certain restrictions. Unless Funko give you express written authority, you may not (a) resell any of the products, content or services or any other Service Content (or any portion thereof) on the Service; (b) reproduce, distribute, publicly perform, or publicly display any of the above; (c) modify or make any derivative uses of the Service or the Service Content (or any portion thereof); or (d) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.

  • BY USING THE SERVICE YOU AGREE NOT TO: use any data mining, scraper, spider robots, or similar data gathering or extraction methods to access, monitor, or copy any Service Content or other content or information used by the Sites;
  • violate the restrictions in any robot exclusion headers on the Service or circumvent any other measures used to prevent or limit access to the Service or interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
  • take any action that imposes, or may impose, in Funko's sole discretion, an unreasonable or disproportionately large load on our infrastructure;
  • engage in deep-linking to any portion of the Service for any purpose;
  • “frame”, “mirror” or otherwise incorporate any part of the Sites into any other web site;
  • use the Service or the Service Content other than for their intended purpose;
  • post content to the Service in violation of the Terms;
  • violate any of the Community Guidelines;
  • use the Service for any illegal purpose or in violation of any local, state, national, or international law;
  • harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
  • violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
  • interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
  • perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
  • sell or otherwise transfer the access granted under these Terms or any Materials (as defined below) or any right or ability to view, access, or use any Materials; or
  • attempt to do any of the acts described above or assist or permit any person in engaging in any of the acts described above.

Any use of the Service or Service Content other than as expressly permitted by these Terms will constitute a violation of the Terms and may constitute infringement of Funko’s intellectual property and other proprietary rights and a violation of applicable law.

  1. User Information

In the course of your use of the Service, you may be asked to provide certain personalized information to us (such information referred to hereinafter as "User Information"). Funko’s policies for collecting, using and protecting User Information are set forth in the Funko Privacy Policy at www.Funko.com/privacy-policy. Please read the Funko Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The Funko Privacy Policy is incorporated by this reference into, and made a part of, these Terms. You acknowledge and agree that you are solely responsible for the accuracy and content of User Information, and you agree to keep it up to date.

  1. Eligibility; Creating an Account

You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

Funko offers a variety of products, content and services through the Service. Some of these are available without charge and others require you to pay a fee. Funko will notify you in advance if a fee is required.

However, many of the features available through the Sites require you to set up an account ("User Account") to access them. If you already have a Funko User Account, you may be able to use that rather than create new account. When you set up a User Account, you will be asked to provide certain information about yourself, including your first name, last name, email address, and other information. You will also be asked to select a unique password for your User Account, and you agree that you are solely responsible for maintaining the confidentiality of the password. You accept responsibility for all activities that occur under your User Account. You may use your User Account to update, revise or delete your Registration Data (as defined below); purchase products; and otherwise manage your orders and use of and interaction with the Service. By registering for a User Account, you agree (a) to provide accurate and current information about you as may be required during the registration process (“Registration Data”); (b) not to impersonate or misrepresent your affiliation with any person or entity or use another person's username, password or other account information, or provide false details for a parent or guardian; (c) to maintain the security of your User Account password and identification; (d) to maintain and promptly update the Registration Data, and any other information you provide to Funko, to keep it accurate and current; (e) to accept all risks of unauthorized access to the Registration Data and any other information you provide to Funko; and (e) to notify Funko immediately of any unauthorized use of your User Account or any other breach of security by emailing us at support@funko.com.

By setting up an Account, you represent and warrant that:

  • all the information you submit for your User Account is true and accurate;
  • you are at least 18 years of age;
  • you have reviewed these Terms; and
  • you are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set forth in these Terms, and to abide and comply with them.

If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. Funko may suspend or terminate your User Account at any time, for any reason, and without advance notice at Funko’s sole discretion and without any liability to you. If Funko suspends or terminates your User Account or this agreement, you understand and agree that (except as otherwise expressly provided) you shall receive no refund or exchange for any content or data associated with your User Account, or for anything else. You may terminate your User Account and these Terms at any time by contacting customer service at support@funko.com or via our chat feature.

  1. General Purchase Terms

Some of the features of the Service require you to set up a User Account in order to purchase related Funko products. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are non-refundable unless other stated in our refund policy available at https://www.funko.com/returns-policy. Funko, at its sole discretion, may make promotional offers with different features and different pricing to any of Funko’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

All purchases from the Service are subject to these Terms, including Funko's policies for cancellations, replacements, shipping, pricing, and payments all of which are located at: https://www.funko.com/terms-and-conditions. In addition, some purchases are subject to individual purchase terms and instructions, which are listed on the applicable product page(s). Before making any purchase, you should be sure to read the Terms and related policies.

You authorize Funko to charge all sums for the orders that you make as described in these Terms or published by Funko, including all applicable taxes, to the payment method specified in your User Account. If you pay any fees with a credit card, Funko may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

Funko may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.

Funko attempts to ensure that the content, product descriptions, prices, and other information on the Service are as accurate as possible. However, Funko does not warrant or guarantee that any information on the Service is accurate, complete, or error-free, and Funko undertakes no commitment or obligation to update any content, product descriptions, or other information on the Service. Funko may at any time change the contents, product descriptions, or other information on the Service, and/or any aspect of the Service, without prior notice. Funko also reserves the right to limit quantities of any Funko product or service purchased by any individual customer, and to revise, suspend, or terminate any special event, promotion, or special offer at any time and without advance notice, at Funko’s sole discretion.

As to products and services that may be featured on the Service, Funko makes every effort to display as accurately as possible such products and services. However, the colors, dimensions, and details that you see on your computer monitor may vary depending on your equipment. Funko cannot guarantee that your equipment will accurately display the details of our products and services.

By purchasing products, content or services through the Service, you agree to comply with all of the Terms. You also represent that you are 18 years of age or older. If a purchase is made by a minor, Funko is under no obligation to offer a refund but may do so at its discretion.

8.  Purchases

  • Digital Content and Virtual Items

Some of the Service make available digital content for download as well as virtual items (Avatars, Badges, etc.) for use within the Service. When you purchase these items, you are purchasing a limited access license to use them. This license gives you the right to download the content (or, in the case of virtual items, to access and use them within the Service) for your personal, non-commercial, use only and the license is non-transferrable and non-sublicensable. The charge for the license may be in the form of a one-time license fee or it may be a recurring fee, depending on the item. Funko will advise you of the specific purchase terms before you complete the license purchase. Digital content may require specific software or hardware in order for you to use it and these requirements are noted on the Service in connection with those products. You are responsible for ensuring that you meet these software and hardware requirements. Digital content and virtual items may not be returned or refunded and virtual items, may only be used within the Service, and we may modify or discontinue them at any time.

  • Software and Apps

Funko may make software and mobile apps available for purchase from the Service or via links to app stores such as iTunes and Google Play. Like digital content, software and mobile apps are licensed, not sold, and may be available without purchase, for a one-time fee, or a recurring fee. Funko will advise you of the specific terms of the license and any fees prior to purchase. If software is provided to you on physical media, you will own the media on which it is provided, but Funko retains all intellectual property rights in the software itself. You are responsible for confirming that the device on which you will install software meets the software and hardware requirements necessary for you to use the software.

  • Funko Collectibles

You can also purchase Funko collectible items from the Service. When you purchase these items, Funko ships them to you according to Funko's payment, shipping and return policies (available at https://www.funko.com/terms-and-conditions). Unlike digital content and software, when you purchase Funko collectibles, you own the physical item. But, like software and other products for which you may purchase a license, you do not obtain any rights in any of the intellectual property embodied in these items. Funko retains all copyright, trademark, trade dress and other rights in them and your use of them is subject to Funko's retained rights.

  1. Social and Community Features

Funko may offer various community features on the Service, such as message or bulletin boards, forums, and chat rooms. Access to these features may be subject to age restrictions. Unless otherwise expressly stated by Funko, Funko does not control and does not have any obligation to monitor, filter, censor, edit, or regulate information or content provided by you or third parties through these social features or the use of the Service by its users, although Funko reserves the right to do so in its sole discretion. Funko does not endorse, warrant the accuracy or reliability of, or assume any liability in connection with any such information or content provided by users or other third parties. Funko may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Funko chooses to monitor the content, Funko still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

As to any information or content that you submit or post to the Service, you represent and warrant that you have the right and authorization to do so without the need for additional permissions or consent of any third party. In addition to any other rules, guidelines or regulations that we may post in connection with a particular service or feature, you agree that you shall not do any of the following in or through the Service:

  • Upload, post, transmit (via e-mail, e-card, chat or otherwise), or otherwise make available any content, language or materials that are fraudulent, unlawful, defamatory, obscene, pornographic, vulgar, offensive, profane, sexually explicit, indecent, threatening, abusive, violent, illegal, rude, harassing, or otherwise improper, or that violates any applicable domestic or international law, or government regulation (including, without limitation, those of any state, foreign country, securities exchange, the S.E.C., and the F.C.C.) or that contains software viruses, worms, or any other computer code or portions of code, programs, or files designed to interfere with, interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications or other equipment or to cause a security breach of such software, hardware, or other equipment;
  • Upload, post, transmit (via e-mail, e-card, chat or otherwise), or otherwise make available any unsolicited or unauthorized advertising, promotional materials, spam, junk mail, chain letters, pyramid schemes, or any other form of commercial or political solicitation, except in those areas of the Service that Funko may expressly designate for such purposes;
  • Engage in or run raffles, lotteries, contests, sweepstakes, or chain letters or other pyramid schemes;
  • Disguise the origin of any content uploaded to, posted on, transmitted, or otherwise made available on or through the Service, including, without limitation, by forging headers, providing inaccurate intellectual property notices, or otherwise manipulating identifiers;
  • Modify, obscure, or eliminate the Funko frame set, banner advertising, or any other content or information that originates from the Service;
  • Promote, encourage or provide instructions or information about how to engage in illegal conduct or commit illegal activities, promote physical harm or bodily injury, or promote any illegal act of cruelty to animals;
  • Collect or harvest screen names, collect or store personal data about other users, or solicit or attempt to discover a user's password, screen name, or other registration information without the user's express knowledge and consent;
  • Interfere with or disrupt the Service or any services or features thereon, or servers or networks connected to the Service, or violate any requirements, policies, regulations, or procedures of networks connected to the Service
  • Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
  • Provide links to websites, networks, content, or resources that themselves violate the letter or spirit of the Terms, or promote the violation of these Terms or make available tools or information whose primary use constitutes a violation of the letter or spirit of these Terms;
  • Use your web pages or other personal features or areas of the Service as storage for remote loading or as a door or signpost to another web page, whether inside or outside the Service; or
  • Interfere with the operation or design of any elements that Funko may add to users' pages or other personal features or areas of the Service, including, without limitation, toolbars, advertising banners, watermarks, logos, or other messages of any kind.

Funko reserves the right, in its sole discretion, to adopt and post additional rules in any social or community area and to condition access to any such community features by any individual or group in accordance with age, geographic, or other criteria, to deny or restrict access by any individual or group who fails to meet that criteria or by anyone who fails to comply with our criteria or rules at any time, and to change or modify the criteria or rules at any time. Funko also reserves the right (but does not assume any obligation), in its sole discretion, to delete any postings, messages or other content on the Service that violate these Terms and to deny access by any user to the Service.

NOTICE: The information and content you submit through a social feature, such as a chat service, may be recorded and stored in multiple places, both on the Service and elsewhere on the Internet, which are likely to be accessible for a long time, and you have no control over who will read them. If you elect to participate in a feature that enables you to correspond with other participants of the service, some of your account information and other materials that you provide, such as your username, may be shared with other participants. You alone are responsible for the content and consequences of any of your messages or other materials submitted to the Service or through these social features. Because of the anonymity provided by usernames, you may not know at all times with whom you are interacting through these features. It is therefore important that you are careful and selective about the information that you disclose about yourself and others, and in particular, you should not disclose any sensitive, personal, proprietary or confidential information in your messages, comments or posts to Funko's public or community features. ALSO, WHEN USING SUCH FEATURES, DO NOT DISCLOSE YOUR PERSONAL INFORMATION (SUCH AS YOUR REAL NAME, PHONE NUMBER, ADDRESS OR OTHER INFORMATION THAT WOULD ENABLE OTHERS TO IDENTIFY OR LOCATE YOU, EITHER ONLINE OR OFFLINE).

While using the social and community features on the Service, you may be exposed to content of other users with which you may disagree or that you may find offensive, indecent, or objectionable, or that is inaccurate, misleading, or illegal. You expressly assume and agree to bear any and all risks associated with the use of any such content and your exposure to any such content, including any reliance by you on the accuracy, integrity, usefulness, or completeness of such content. Funko will not be liable, and disclaims all liability, in connection with any harm, loss, or damages of any amount or type arising from your access to, or use of, the services or any content posted to, downloaded from, or otherwise made available through the Service, whether that content is posted to, downloaded from, or otherwise made available through the Service by Funko, you, another user, or any other third party.

Funko encourages you to report any suspected violations of these Terms or any other additional rules posted in connection with such activity or service, in particular as they relate to inappropriate behavior or activity in our chat services and other community features. You may contact Funko to report violations at contact@funko.com

Funko reserves the right, but not the obligation, to investigate and take appropriate legal action in its sole discretion against anyone who it believes violates these Terms, including without limitation, removing the offending communication in whole or in part from the Service, suspending or terminating the membership of such violators and/or suspending or terminating their right to use and access the Service.

  1. User Generated Content

Funko may allow you to submit, upload, publish or otherwise make available text, images, audio, video, competition entries or other content or types of works (“User Generated Content”) on or through the Service. All submissions must comply with the rules above for Social and Community Features.

Funko does not claim ownership to your User Generated Content, and you retain any copyright and other proprietary rights that you may hold in the User Generated Content that you post to the Service. By posting User Generated Content, you grant Funko a non-exclusive, sublicensable, irrevocable, royalty-free, worldwide, fully paid right and license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, host, store, perform, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with third-party Service and platforms such as Facebook, YouTube and Twitter), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. In addition, by providing User Generated Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Generated Content as permitted by these Terms and the functionality of the Service. This paragraph will survive termination of the Terms.

Funko disclaims any and all liability in connection with User Generated Content. You are solely responsible for your User Generated Content and the consequences of providing User Generated Content via the Service. By providing User Generated Content via the Service, you represent and warrant that (a) your User Generated Content conforms to these Terms and that you own or have the necessary rights, licenses, consents, and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these terms; (b) your User Generated Content, and the use of your User Generated Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Funko to violate any law or regulation; and (c) your User Generated Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate. You agree to indemnify and hold Funko and our subsidiary and affiliated companies, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.

We are under no obligation to edit or control User Generated Content that you or other users post or publish, and will not be in any way responsible or liable for User Generated Content. Funko may, however, at any time and without prior notice, screen, remove, edit, or block any User Generated Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Generated Content from a variety of sources and acknowledge that User Generated Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Funko with respect to User Generated Content. If notified by a user or content owner that User Generated Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Generated Content, which we reserve the right to do at any time and without notice. For clarity, Funko does not permit copyright-infringing activities on the Service.

  1. Communications with Funko

Funko likes to hear from you. However, in your communications with Funko, please keep in mind that, unless we specifically request them, Funko does not solicit or wish to receive any confidential, secret or proprietary information or other material from you through the Service, by e-mail or in any other way, and Funko does not accept or consider any ideas or suggestions relating to products, services, marketing plans, or any other matters.

Any such submissions, materials, content, information, creative works, demos, ideas, questions, comments, answers, suggestions, concepts, methods, systems, designs, plans, techniques or the like submitted to Funko via the Service, mail, e-mail or otherwise, or transmitted, posted, or uploaded by you to the Service (collectively, "Your Submissions") will be treated as non-confidential and nonproprietary, and Funko will not assume any responsibility, obligation, or liability for them or for Funko's receipt or non-receipt of them. Funko may delete or destroy Your Submissions at any time. Funko's receipt of Your Submissions is not an admission by Funko of their novelty, priority, or originality, and it does not impair Funko's right to contest existing or future intellectual property rights relating to Your Submissions.

By submitting or sending Your Submissions to Funko, you grant Funko a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, and fully transferable, assignable and sublicensable right and license to copy, reproduce, distribute, publish, transmit, modify, adapt, translate, display, distribute, sell, license, publicly perform, prepare derivative works based upon, and otherwise use or exploit Your Submissions throughout the world in any and all media. You represent and warrant that: (a) you have the right and authorization to make the foregoing grant without the consent of any third party, and (b) Your Submissions are accurate and, as permitted to be used by Funko under these Terms, do not and will not infringe any right of any third party.

  1. Communications from Funko

By creating a User Account or sending e-mail to Funko, you consent to receive email communications from us. Furthermore, you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically, via the Service or otherwise, satisfy any legal requirement that such communications be in writing. We may send you emails concerning out products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.

When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.

  1. Investigations

Funko reserves the right, without any limitation whatsoever, to: (a) investigate any suspected breaches of security for the Service or its information technology or other systems or networks, (b) investigate any suspected breaches of these Terms or violations of any additional terms, conditions and rules posted in connection with a particular service or feature on the Service, (c) involve and cooperate with law enforcement authorities in investigating any such matters, (d) prosecute violators of these Terms to the full extent of the law, (e) delete or modify any content on the Service, including any materials or items you may have acquired through your use of the Service, and (f) discontinue any of the Service or terminate your access to them at any time, without notice, for any reason and without any obligation to you whatsoever.

  1. Privacy

Funko may collect certain information in order to operate the Service and to fulfill your requests or enable participation in certain online activities. Under the Funko Privacy Policy, we may disclose to third parties certain aggregate information contained in your registration information (if any) or related information. Funko will not, however, disclose personally identifiable information about you to anyone outside our corporate family, except our agents and service providers, unless: (a) you specifically authorize us to do so, (b) we believe, in good faith, that such disclosure is necessary either to comply with the law or a legal process (including subpoenas and other court orders), or to enforce these Terms, or (c) it's otherwise permitted under our Privacy Policy (which we may amend from time to time, without notice to you). For more information about and to read the Funko Privacy Policy see https://www.funko.com/privacy-policy.

Funko has adopted reasonable security measures to protect against the loss, misuse, and alteration of the personal information under our control. We use Secure Sockets Layer technology to protect highly sensitive information such as credit card data during transmission, and adopt careful internal procedures to safeguard this information in our system. Nevertheless, we cannot guarantee complete security of personal information.

  1. Notice to International Visitors

The Service and the servers that make them available are located in the United States of America. If you reside in another country, these Terms may conflict with the laws of your country. In the event of such a conflict, these Terms will govern to the extent that they are valid and enforceable under applicable United States laws.

Funko makes no representation that the Service are appropriate or available for use beyond the United States of America. If you use the Service from other locations, you are responsible for compliance with applicable local laws. Although Funko products and services are available in many parts of the world, the Service may describe products and services that are available only in the United States of America and are not available worldwide.

  1. Banners, Advertisements and Promotions

Funko reserves the right to post banners, advertisements, promotions, and similar content throughout the Service. Funko may also allow advertisers and corporate partners to post content on the Service. This content may be targeted to users based on information they provide through use of the Service or other information. Funko does not control, endorse or adopt any such activity and we make no representation or warranties of any kind regarding it. Any interactions, correspondence, and business dealings that you have with any advertisers and other third parties found on or through the Service (including via the linked third-party Service) are solely between you and the third party (including, without limitation, issues related to the content of third party advertisements, payments, delivery of goods, warranties, and the like). Funko disclaims all liability in connection with them.

  1. Contests and Promotions

Competitions that you enter through the Service may have supplemental rules and conditions, but the following general rules apply unless otherwise provided.

  • Entries

Your competition entry is User Generated Content and subject to all provisions of these Terms. Funko may disqualify entries that are late, misdirected, incomplete, corrupted, lost, illegible or invalid or where appropriate parental consent was not provided. Competition entries are limited to one per person and entries via agents or third parties or the use of multiple identities are not permitted. Use of automated entries, votes or other programs is prohibited and all such entries (or votes) will be disqualified.

Funko reserves the right to modify, suspend, cancel or terminate a competition or extend or resume the entry period or disqualify any participant or entry at any time without giving advance notice. Decisions of Funko are final and binding with respect to all matters related to any competition. Funko reserves the right to shorten, extend, modify, or cancel any competition, in its sole discretion, at any time and without notice, even though such action may affect your ability to win a prize. Funko is not responsible for any typographical or other error in printing or description of any competition.

  • Eligibility

To enter a competition, you must have a valid User Account with current contact information. No purchase is necessary to enter a competition and a purchase will not improve your chances of winning. Competitions are not open to our employees (or their immediate families) or anyone else professionally associated with the competition. If you are under age 18 (or the age of majority under applicable law) and the competition is open to you, we may need your parent or guardian’s consent before we can accept your entry. Funko reserves the right to request proof of identity or to verify eligibility conditions and potential winning entries, and to award any prize to a winner in person. Competitions are void where prohibited or restricted by law. Potential winners who are residents in jurisdictions where competitions require an element of skill may be required to answer a mathematical test in order to be eligible to win a prize. By entering a competition or accepting a prize, you agree to conform (and, as applicable, that you have conformed) to all laws and regulations. It is your responsibility to comply with the contest laws of your jurisdiction. You acknowledge that certain jurisdictions have laws regarding contests that may prevent Funko from awarding you your prize. If you are a winner and this happens to be the case with your jurisdiction, you acknowledge that you may not be able to receive any prize at all from Funko. By entering a competition, you acknowledge the risks, and understand that you may win but not be able to receive a prize.

  • Prizes

No cash or alternative prizes are available, except that Funko reserves the right to substitute a similar prize of equal or greater value. Prizes cannot be transferred, assigned, or sold by winners. All prizes will be awarded provided a sufficient number of eligible entries are received and prizes are validly claimed by the date provided. Unless otherwise disclosed in the prize description prior to entry, winners are responsible for all costs and expenses associated with claiming a prize. All taxes are solely the responsibility of each winner, although we reserve the right to withhold applicable taxes and each winner agrees to complete any required tax forms. You may have to provide a Social Security number or Taxpayer ID prior to the awarding of any prize. In addition, if the prize is unable to be fulfilled to the winner due to any applicable law, rule or regulation, or if the winner is ineligible or cannot claim the prize for any reason, then Funko reserves the right to not award the prize at all.

  • Publicity

Except where prohibited, participation in a competition constitutes your consent to Funko’s use of your name, user name, likeness, voice, opinions, testimonials, biographical information, hometown and jurisdiction for promotional purposes in any media without further payment or consideration. Your acceptance of a prize constitutes agreement to participate in reasonable publicity related to the competition and grants Funko an unconditional right to us to use your name, town or city and state, province or country, likeness, prize information, photograph, voice, biographical information and statements by you about the competition for publicity, advertising and promotional purposes and to comply with applicable law and regulations, all without additional permission or compensation. As a condition of receiving a prize, winners (or their parents or guardians) may be required to sign and return an affidavit of eligibility, liability release and publicity release. Notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, your acceptance of a Prize constitutes your: (a) authorization to: (i) have Funko (and its agents, consultants and employees) photograph, record, tape, film and otherwise visually and audiovisually record you; (ii) have Funko (and its agents, consultants and employees) use, reproduce, disseminate, alter, edit, dub, modify, distort, add to, subtract from, process and otherwise exploit any results of such activity (including without limitation any manner in which such activity may be recorded or remembered or modified) or derivatives or extensions or imitations thereof in any manner that Funko sees fit, in any medium or technology known or hereinafter invented, throughout the universe in perpetuity, including without limitation for illustration, art, promotion, advertising, trade or any other purpose whatsoever; and (b) your waiver any right that you may have to examine or approve the completed product or products or the advertising copy or printed matter that may be used in conjunction therewith or the use to which it may be applied.

  • Limitation of Liability

EACH COMPETITION IS PROVIDED “AS IS” AND FUNKO DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ANY AND ALL, REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING A COMPETITION. Participation in a competition is at entrant’s own risk. Funko shall not be liable for any technical or logistical issues that may prevent you from participating in a competition or claiming a prize, including, but not limited to: (a) failed, returned or misdirected notifications based on inaccurate information provided by the winner in connection with an entry; (b) entries and responses to winner notifications which are lost, late, incomplete, illegible, unintelligible, postage-due, misdirected, damaged or otherwise not received by the intended recipient in whole or in part or for computer or technical error of any kind; (c) any electronic miscommunications or failures, technical hardware or software failures of any kind, lost or unavailable network connections, or failed incomplete, garbled or delayed computer transmissions which may limit an entrant's ability to participate in the competition; (d) any technical malfunctions of the telephone network, computer online system, Internet, computer equipment, software, phones, program malfunctions or other failures, delayed computer transactions or network connections that are human, mechanical or technical in nature, or any combination thereof, including any injury or damage to entrant's or any other person's computer or mobile device related to or resulting from downloading the mobile application or otherwise in connection with a competition.

  1. Copyright Claims

Funko will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own copyrights in a work and believe that your intellectual property rights in that work have been infringed by an improper posting or distribution of it via the Service, then send Funko a written notice that includes all of the following:

  • a legend or subject line that says: "DMCA Copyright Infringement Notice";
  • a description of the copyrighted work that you claim has been infringed;
  • the URL of the site and a description of where the material that you claim is infringing is located on that site;
  • your address, telephone number, and e-mail address;
  • a statement by you that you have a good faith belief that the alleged infringing material is not authorized by the copyright owner, its agent, or the law;
  • 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,
  • your electronic or physical signature.

Funko will only receive DMCA notices by mail, e-mail, or facsimile directed to Funko's Designated Agent at the addresses below:

By Mail:

Funko, LLC

Attention: Legal Department

2802 Wetmore Avenue

Everett, WA 98201

By E-Mail: legal@funko.com

Funko may elect to not respond to DMCA notices that do not comply with all of the foregoing requirements, and Funko may elect to remove allegedly infringing material that comes to its attention via notices that do not comply with the above. Funko will promptly terminate the accounts of users that are determined by Funko to be repeat infringers.

  1. Warranty Disclaimers and Waiver

THE SERVICE, AND ALL SITE CONTENT, FUNKO PRODUCTS AND SERVICES, AND OTHER MATERIALS, INFORMATION, PRODUCTS, AND SERVICES INCLUDED IN OR MADE AVAILABLE IN CONNECTION WITH THE SERVICE ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. FUNKO EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FUNKO DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Funko DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. FUNKO ALSO DISCLAIMS ANY WARRANTIES REGARDING THE ACCURACY, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY, COMPATIBILITY, AND PERFORMANCE OF THE SERVICE AND INFORMATION THEREON. FUNKO FURTHER DISCLAIMS ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH ANY CONTENT ON THE SERVICE. FUNKO DISCLAIMS ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR IN CONNECTION WITH THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED ON THE SERVICE, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY LINKS PROVIDED ON THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR FUNKO OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF FUNKO OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER GENERATED CONTENT.
YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST FUNKO, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS WITH RESPECT TO THE SERVICE, ANY CONTENT ON THE SERVICE, AND ANY FUNKO PRODUCTS AND/OR SERVICES, AS WELL AS ANY CONTENT YOU PROVIDE TO THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION).

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Funko does not disclaim any warranty or other right that Funko is prohibited from disclaiming under applicable law.

  1. Limitation of Liability

To the fullest extent permitted by law, in no event will Funko be liable to you FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) under any theory of law, for any and all damages, claims, or causes (such as, but not limited to, punitive damages, breach of contract damages, loss of profits, business interruption, loss of information or data, or costs of replacement goods) arising out of or relating to your use or inability to use the Service or resulting from use of or reliance on the information present, even if Funko may have been advised of the possibility of such damages. EXCEPT AS PROVIDED IN SECTION 2324.e AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF Funko and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Funko Entities”) TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, ProDUCT, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO Funko IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 20 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.

  1. Force Majeure

Without limiting any provision in the previous section, Funko shall not be liable or be deemed to be in breach of these Terms for any failure to perform, or delay in performing, any of Funko’s obligations in relation to Funko products if the delay or failure was due to any cause beyond Funko’s reasonable control. Causes beyond Funko’s reasonable control shall include, but not be limited to, acts of God, flood, explosion, natural catastrophe, storms, fire or accident; war or threat of war, blockade, sabotage, insurrection, terrorism, riot or civil disturbance; epidemic, pandemic, or viral outbreak; acts, restrictions, regulations, laws, prohibitions or measures of any kind on the part of any governmental, international, federal, state or local authority; import or export regulations or embargoes; strikes or other industrial actions or trade disputes (whether involving employees of Funko or a third party); problems in obtaining raw materials, labor, transportation, fuel, parts or machinery; and power failure or breakdown in machinery, including computer or other equipment failure. In the event of any such default or delay, the date for performance shall be extended for a period equal to the period during which such aforesaid cause, circumstance or contingency remains in effect.

  1. Term, Termination and Modification of the Service

a.      Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 22.b.

b.     Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Funko may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@funko.com or via our chat feature.

c.      Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Funko any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination, Sections 19, 20, 22.c, 23, 24, 25, and other provisions expressly stated as surviving, will survive.

d.     Modification of the Service. Funko reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Funko will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.

  1. Indemnification

To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Funko and its officers, directors, employees, consultants, affiliates, subsidiaries and agents from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service or a product; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.          

  1. Binding Arbitration; Class Action Waiver

a.      Generally. In the interest of resolving disputes between you and Funko in the most expedient and cost effective manner, and except as described in Section 24.b and 24.c, you and Funko agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Funko ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

b.     Exceptions. Despite the provisions of Section a, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.

c.     Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 24 within 30 days after the date that you agree to these Terms by sending a letter to Funko, LLC, Attention: Legal Department – Arbitration Opt-Out, 1202 Shuksan Way, Everett, WA 98203 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Funko receives your Opt-Out Notice, this Section 24 will be void and any action arising out of these Terms will be resolved as set forth in Section 24.b. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.

d.     Arbitrator. Any arbitration between you and Funko will be settled under the Federal Arbitration Act and administered by JAMS in accordance with the rules of JAMS (“JAMS Rules”), which rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS may be contacted at www.jamsadr.com. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

e.     Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Funko’s address for Notice is: Funko, LLC, 1202 Shuksan Way, Everett, WA 98203. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Funko may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Funko must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Funko in settlement of the dispute prior to the award, Funko will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

f.       Fees. If you commence arbitration in accordance with these Terms, Funko will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the JAMS Rules. Any arbitration hearing will take place at a location to be agreed upon in Snohomish County, Washington, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the JAMS Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS Rules. In that case, you agree to reimburse Funko for all monies previously disbursed by it that are otherwise your obligation to pay under the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

g.      No Class Actions. YOU AND Funko 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. Further, unless both you and Funko agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

h.     Modifications to this Arbitration Provision. If Funko makes any future change to this arbitration provision, other than a change to Funko’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Funko’s address for Notice of Arbitration, in which case your account with Funko will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

i.       Enforceability. If Section g or the entirety of this Section 24 is found to be unenforceable, or if Funko receives an Opt-Out Notice from you, then the entirety of this Section 24 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 24.b will govern any action arising out of or related to these Terms.

  1. Miscellaneous

a.      General Terms. These Terms, together with the Funko Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Funko regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

b.     Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. You and Funko submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Snohomish County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

c.      Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

d.     Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

e.     Contact Information. The Service is offered by Funko, LLC located at 1202 Shuksan Way, Everett, WA 98203. You may contact us by sending correspondence to that address or by emailing us at support@funko.com.

f.       Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

g.      No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

  1. Notice Regarding Apple

This Section 26 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Funko only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

Last updated: February 18th, 2021