Effective Date: October 16, 2019
THE FOLLOWING PROGRAM TERMS GOVERN YOUR ACCESS TO AND USE OF THE SHOPHQ® VIP WEBSITE (“SITE”) AND ALL PROGRAMS OFFERED THROUGH THE SITE, THESE TERMS INCLUDE AN ARBITRATION AGREEMENT, WHICH WILL GOVERN ANY DISPUTE BETWEEN US AND YOU, UNLESS YOU OPT OUT AS DESCRIBED IN SECTION 7, BELOW. ACCORDINGLY, PLEASE READ THESE TERMS CAREFULLY.
You agree that we may provide notices, disclosures, and amendments to these Program Terms, and other information relating to Membership or any Program by electronic means, including posting these materials online at www.ShopHQVIP.com.
- Program Terms. These Program Terms (“Terms” or “Program Terms”) constitute the legally binding terms governing your use of the Site and the Membership programs available to you through the Site (each, a “Program”). The full details of the Program are available at www.shophqvip.com/how-it-works.
- Acceptance. When you enroll in a Program, each time you use or access the Site or Program, and by your continued Membership in a Program, you signify your acceptance of and agreement to these Terms as they exist from time to time, including without limitation, any changed provisions, including, without limitation, the dispute resolution provisions in Section 7 below. The Site and Programs are provided by Clarus Commerce, LLC on behalf of and for the benefit of iMedia Brands, Inc., d/b/a ShopHQ (“ShopHQ”). Unless otherwise noted, all references to “ShopHQ”, “us,” “our,” or “we” will be deemed to include both Clarus Commerce, LLC and ShopHQ.
- These Program Terms May Change. ShopHQ shall have the right at any time and without prior notice, at its sole discretion, to revise these Program Terms or to impose new Program Terms. Such revisions and additions shall be effective immediately upon notice, which may be given by any means, including but not limited to posting the revised or additional Program Terms on ShopHQVIP.com. You are responsible for reviewing ShopHQVIP.com periodically for any modification to these Program Terms. Any access to or use of the Program or Site by you, or your continued Membership in any Program, after notice of revisions or additions to these Program Terms shall constitute and be deemed to be your agreement to such revisions or additions. Such revisions and additions may, without limitation, change, add, or eliminate Membership or Program benefits, features, terms and conditions, in whole or in part, at any time without notice or compensation, even though such actions may affect Membership or participation in any Program.
- Electronic Form. By accessing the Site or enrolling in a Program (thus becoming a “Member” and having a "Membership"), you consent to have these Terms provided to you in electronic form. You have the right to receive these Terms in non-electronic form at any time by contacting Clarus Commerce online at [email protected] or sending a letter and self-addressed stamped envelope to: Clarus Commerce, LLC, 500 Enterprise Drive, 2nd Floor, Rocky Hill, CT 06067.
- Registration. You do not have to subscribe to the Programs to view benefits available through this Site, but only Members can access the Programs. By registering and becoming a Member, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form, and (ii) maintain and properly update your account information to keep it true, accurate, current, and complete. Registration is currently available only to U.S. residents, except for residents of Iowa. There is a limit of one Membership and one introductory/premium offer per household.
- Membership Charges; Recurring Billing. You will be charged for your Membership using the billing information you provide or authorize at the time of enrollment (your “Billing Account”). Your Membership fee is nonrefundable unless required by law. By enrolling in the Program, you authorize your Billing Account to be charged the monthly fees then in effect for the Program on a recurring basis without any further authorization from you. Your enrollment might include a trial or promotional period, and your original enrollment in the Program, followed by non-termination or continued use of the Program during and following such period, constitutes your authorization for your Billing Account to be charged monthly in accordance with the rate identified at the time of enrollment. If the amount to be charged to your Billing Account changes from the rate set forth at the time of your original enrollment and authorization, we will send notice to you of the amount to be charged and the date of the charge at the email address we have on file for your account at least 10 days before the scheduled date of the transaction. We reserve the right to correct any errors or mistakes contained in your Billing Account information and to update your Billing Account information from available third-party sources.
- Cancellation. To change or cancel your Membership at any time, go to the “Help” tab, or send your request to us using the “Contact Us” link on any page of the Site or call the ShopHQ VIP Customer Service Department toll-free at (877) 808 – 4846. Unless cancelled, your Membership will automatically continue. If you cancel a Membership, you may use your Membership until the end of your then-current paid-for Membership term (ie., month or year). Your Membership will not be renewed after your then-current term expires. You will not be eligible for a prorated refund of any portion of the monthly Membership fee paid for the then-current Membership period, unless required by law. If your enrollment includes a trial period and you choose to cancel your Membership within your trial period, your access to the site will be disabled, effective immediately, regardless of how many days are left in your trial.
- Reactivating a Cancelled Account. If you cancel your Membership but want to become a Member again, please contact [email protected] for assistance.
- Termination. We may suspend or terminate your Membership and your access to the Site or the Programs, in whole or in part, at any time, immediately and without notice if, at our sole discretion, you fail to comply with any of these Terms or engage in any conduct that we deem unacceptable in our sole discretion. Any order that is deemed a commercial (non-personal) use or high-volume/reseller order, at our sole discretion, will not be eligible for Membership benefits, and your Membership may be suspended or terminated. Upon termination, you must destroy all materials obtained from this Site and the Programs and all copies thereof. In the event of suspension or termination, you are no longer authorized to access the Programs, and the restrictions imposed on you with respect to any materials downloaded from the Site or the Programs and the disclaimers and limitations of liabilities set forth in the Terms shall survive.
- Use of the Site and Programs.
- Use of the Site and Program. Unless otherwise noted, the Site and Program are protected by patents, copyrights, trademarks (including but not limited to service marks), and other proprietary rights that are owned by ShopHQ or by third parties that have licensed their use to ShopHQ. You may view and use the Program only for your personal information and for shopping and ordering through the Site. Except as set forth above, ShopHQ does not grant to you any right to use, reproduce, copy, modify, transmit, display, publish, sell, license, create derivative works, publicly perform, or distribute by any means, method, or process, any of the Program. You may not in any way reproduce or publicly display, perform, distribute or otherwise use any of the Program for any public or commercial purpose, except for limited backup purposes where appropriate. You may not create any derivative work based on the Program or decompile, reverse engineer, or otherwise attempt to derive source code, underlying ideas, algorithms, structure, or organization of, the Program. You agree not to use or attempt to use any engine, software, tool, agent or other device or mechanism (including without limitation any type of spider, web crawler, or robot) to navigate, search, catalog and/or extract information from the Program. Any unauthorized use of any Program may violate copyright laws, trademark laws, laws of privacy and publicity, and other laws and regulations.
- Copyright Violations – Digital Millennium Copyright Act. We respect the intellectual property rights of others, and we require that the people who use our Services do the same. We may terminate the privileges of users who are repeat infringers of intellectual property rights. If you are a copyright owner and believe that any content posted on the Site infringes upon your copyrights, you may submit written notification pursuant to the Digital Millennium Copyright Act (“DMCA”) to our designated Copyright Agent by email at [email protected] or by mail to ShopHQ Live Inc., Attn: Copyright Agent, Legal Department, 6740 Shady Oak Road, Eden Prairie, MN 55344. You should include the following information: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) identification of the copyrighted work claimed to have been infringed; (3) identification of the material that is claimed to be infringing and information reasonably sufficient to permit location of the material; (4) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (5) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Trademarks and Patents. Certain patents, copyrights, trademarks (including but not limited to service marks), trade names, and logos used or displayed on the ShopHQ Services are registered and unregistered patents, copyrights, trademarks, trade names, and logos of ShopHQ or its affiliates. Other patents, copyrights, trademarks, trade names, and logos used or displayed on the Services are the registered and unregistered patents, copyrights, trademarks, trade names, and logos of their respective owners, including the developers, or their respective affiliates. Any identification of trademarks or other proprietary rights of other parties shall be in accordance with ShopHQ policy, and ShopHQ acknowledges the rights of such third parties. Nothing contained on the Site or in the Programs grants or should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any patents, copyrights, trademarks, tradenames, or logos displayed on the Site or in the Programs without the written permission of ShopHQ or such other owner.
- Age Requirements. You must be at least 18 years old or the age of majority in your state of residence, whichever is older, to join and to use the Program.
- Links. You may be able to access other websites or resources through links on the Site. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, or other materials available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or programs available on or through any such site or resource.
- Indemnity/Release. You understand that you are personally responsible for your behavior while on the Site and agree to indemnify and hold us and our affiliates, business partners, and their respective officers, directors, employees, and agents (collectively, “Covered Parties”), harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) that any of the Covered Parties may incur arising out of or related to any products or Programs purchased by you in connection with the Site or the Programs and in connection with a third-party claim or otherwise, in relation to your use of the Programs or access to the Site, or your violation of either these Program Terms, applicable law, or the rights of any third party. You are solely responsible for your own interactions with any merchants accessed through the Site or Programs. To the extent permitted under applicable laws, you hereby release the Covered Parties from any and all claims or liability related to any product or program of a merchant, any action or inaction by a merchant, including any merchant’s failure to comply with applicable law and/or failure to abide by the Program Terms and any conduct or speech, whether online or offline, of any other user.
In connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- Disclaimer of Warranties and Limitation of Liability. THE SITE AND PROGRAM (INCLUDING THIRD-PARTY INFORMATION, PRODUCTS, AND CONTENT) ARE OPERATED ON AN "AS IS," "AS AVAILABLE" BASIS. TO THE FULL EXTENT PERMITTED BY LAW, SHOPHQ AND ITS AFFILIATES DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SITE AND THE PROGRAM, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. WITHOUT LIMITING THE FOREGOING, SHOPHQ AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT THAT THE SITE OR THE PROGRAM WILL OPERATE WITHOUT INTERRUPTION OR ERROR. UNDER NO CIRCUMSTANCES SHALL SHOPHQ OR ITS AFFILIATES, OR ANY OF THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS, BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SITE OR THE PROGRAM, INCLUDING, BUT NOT LIMITED TO, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR ANY OTHER TYPE OF DAMAGES. YOUR USE OF THE SITE AND THE PROGRAM IS AT YOUR SOLE RISK.
WE ENGAGE THIRD-PARTY PARTNER COMPANIES IN CONNECTION WITH THE PROGRAMS, INCLUDING TO PROVIDE PROGRAM REWARDS, BENEFITS AND SERVICES. WE ARE NOT RESPONSIBLE, AND ASSUME NO LIABILITY, FOR THE GOODS AND SERVICES OF SUCH PARTNER COMPANIES (INCLUDING, WITHOUT LIMITATION, ANY CHANGES OR DISCONTINUANCES OF SUCH PARTNER COMPANIES’ GOODS OR SERVICES). WE (AND OUR AFFILIATES, SUPPLIERS AND/OR VENDORS) ARE NOT LIABLE FOR ANY ACTS, ERRORS, OR OMISSIONS OF ANY THIRD PARTY OR PROGRAM PARTNER.
WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR THE MERCHANTABLITY OF ANY PRODUCT OR PROGRAM ACCESSED FROM THE SITE OR A LINKED SITE. OTHER THAN AS REQUIRED BY LAW, UNDER NO CIRCUMSTANCE WILL WE BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE OR A LINKED SITE, OR YOUR RELIANCE ON ANY PRODUCT OR PROGRAM OBTAINED FROM THE SITE OR A LINKED SITE.
APPLICABLE LAW, INCLUDING THE LAW IN NEW JERSEY, MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. YOUR USE AND BROWSING OF THE SITE IS AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SITE OR PROGRAMS, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE AND PROGRAMS. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS, AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED THE FEES YOU PAID FOR TWO MONTHS OF MEMBERSHIP IN THE PROGRAM).
- Dispute Resolution.
- ARBITRATION AGREEMENT. INSTEAD OF SUING IN COURT, YOU AND SHOPHQ EACH AGREE TO ARBITRATE DISPUTES ON A BILATERAL (INDIVIDUAL) BASIS. You and ShopHQ agree that any dispute, controversy or claim between you and ShopHQ which cannot be settled through the customer service department refunding your payments in full (if applicable) and which arises out of or relates to (i) these Terms; (ii) any aspect of your relationship with ShopHQ, including the Site or the Program; (iii) any Site content and\or Submissions; or (iv) ShopHQ's marketing efforts, including complaints concerning unsolicited text messages, emails, push notifications, and telemarketing calls, irrespective of whether the dispute, controversy or claim arose after the termination of the relationship between you and ShopHQ and/or the Program (collectively, "Claims"), shall be resolved by one arbitrator through binding arbitration. This agreement to arbitrate is intended to be broadly interpreted. It includes Claims based in contract, tort, statute, fraud, misrepresentation or any other legal theory. You understand and agree that you are waiving your right to sue or go to court to assert or defend your rights; provided, however, either you or ShopHQ may bring an individual lawsuit in small claims court consistent with the jurisdictional and dollar limits that may apply. The arbitrator's decision and award are final and binding, with only those exceptions provided under the Federal Arbitration Act, 9 U.S.C. §§ 1, et seq. (“FAA”), and judgment on the award may be entered in any court with jurisdiction.
- Class Action Waiver. ShopHQ and you each agree that each and both of the Parties are waiving the right to a trial by jury and may bring Claims against the other party only in an individual capacity and not in a class action or representative or collective proceeding. All arbitrations under this Arbitration Agreement shall be conducted on an individual (and not a class-wide or collective) basis. You acknowledge and agree that these Program Terms specifically prohibit you from commencing any legal proceedings as a representative of others or joining in any arbitration proceedings brought by any other person ("Class Action Waiver"). If a court decides that the limitations of this paragraph are invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
- Informal Dispute Resolution Requirement. A party who intends to seek arbitration must first send to the other a written Notice of Dispute describing the nature and basis of the Claim and setting forth the specific relief sought. All notices to ShopHQ shall be sent to the following address: ShopHQ, Legal Department, 6740 Shady Oak Road, Eden Prairie, MN 55344. All notices sent by ShopHQ to you will be sent to the email and/or mailing address provided in your ShopHQ Account. Upon receipt of such notice, the other Party shall have a sixty (60) day period in which it may satisfy the Claim against it by fully curing the Claim and/or providing all the relief requested in the notice, and/or entering into a settlement to resolve the Claim to the mutual satisfaction of the Parties. After the expiration of such sixty (60) day period, you or ShopHQ may commence an arbitration proceeding. Both you and ShopHQ agree that this dispute resolution procedure is a condition precedent which must be satisfied before initiating any arbitration against the other party.
- Right to Opt Out of this Arbitration Agreement. You may opt out of this Arbitration Agreement within the first 30 days after the earliest of the first time you (a) make a purchase from ShopHQ; or (b) sign up for any Program or service provided by ShopHQ. You may also opt out of this Arbitration Agreement within 30 days after we provide notice of a material change to this Arbitration Agreement. (Please see These Program Terms May Change, above.) You may opt out by sending an email to [email protected] or by sending a letter to ShopHQ, Legal Department, 6740 Shady Oak Road, Eden Prairie, MN 55344. You should include your printed name, mailing address, and the words “Reject Arbitration.”
- Arbitration Procedures. The arbitration of any Claim under this Agreement shall be referred to the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes. These rules and procedures, including information on how to initiate arbitration, are available by calling the AAA at 800-778-7879 or by visiting its website (www.adr.org). Unless you and ShopHQ agree otherwise, including to conduct arbitration by telephone or videoconference, the arbitration of any Claim shall be conducted in the State in which you reside, and ShopHQ will: (1) pay all costs of the arbitration; and (2) not seek attorney's fees in the event ShopHQ prevails. Each party shall pay the fees and costs of its own counsel, experts and witnesses.
- Governing Law and Other Terms. This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the FAA and other applicable federal law. To the extent state law applies to any aspect of this Arbitration Agreement, or to Claims that are covered by the Arbitration Agreement, the law of the State of Minnesota, will govern. ShopHQ will provide notice of any material changes to this Arbitration Agreement. (Please see These Program Terms May Change, above.) Except as set forth above regarding the Class Action Waiver provision, if a court decides that any portion of this Arbitration Agreement is invalid or unenforceable, such determination will not invalidate the remaining portions of the Arbitration Agreement. Only the arbitrator is authorized to make determinations as to the scope, validity, or enforceability of this Agreement, including whether any dispute falls within its scope. However, the parties agree that any issue concerning the validity of the class action/representative waiver above must be decided by a court, and an arbitrator does not have authority to consider the validity of the waiver.
- Miscellaneous. These Terms and policies incorporated herein are the entire agreement between you and us relating to your use of the Site or the Programs and supersede any and all prior or contemporaneous agreements between you and us relating to your use of the Site or the Programs. Our failure to partially or fully exercise any rights, shall not prevent our subsequent exercise of such right or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms. Our rights and remedies under these Terms and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy. We reserve the right to seek all remedies available to us at law and in equity for violations of any of these Terms, including, without limitation, by suspending or blocking your access to your Membership and Program account, or terminating your Membership or participation in any or all Programs. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. If and to the extent that there is any conflict among or between the Site (including any Site webpages), or Program marketing, promotion, communication or descriptive materials and these Terms, the language in these Terms will control. The invalidity or unenforceability of any provision of these Terms will not affect the validity or enforceability of any other provision.
- Severability. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of these Terms will remain in full force and effect.