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Terms and Conditions

A Pea in the Pod - Terms & Conditions

HATCH Holdings LLC Version [Feb 2023]

 

TERMS AND CONDITIONS

These Terms of Use (“Terms”) are a legal contract betweenHATCH Holdings LLC(“A Pea in the Pod” “Us” or “Our” or “We”) and You (collectively, “Everyone”) and govern Your use of (1) our websites, www.apeainthepod.com, www.motherhood.com, and any other website upon which we post these Terms (each, a “Retail Website”); (2) of all the text, data, information, software, graphics, photographs and more (all of which We refer to as “Materials”) that We and Our affiliates may make available to You, as well as (3) any services We may provide through any of Our websites (each, a “Service”) ((1) – (3) are referred to, collectively, in these Terms as the “Retail Websites”). The Retail Websites and Services are intended for customers and users outside the European Economic Area (“EEA”). READ THESE TERMS CAREFULLY BEFORE BROWSING ANY RETAIL WEBSITE. USING A RETAIL WEBSITE INDICATES THAT YOU HAVE BOTH READ AND ACCEPT THESE TERMS. YOU CANNOT USE OUR RETAIL WEBSITES IF YOU DO NOT ACCEPT THESE TERMS. NOTE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH US. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.

 

CHANGES.

We may alter the Materials and Services We offer You and/or choose to modify, suspend or discontinue any of Our Retail Websites at any time and without notifying You. We may also change, update, add or remove provisions (collectively, “modifications”) of these Terms from time to time. Because Everyone benefits from clarity, We promise to inform You of any material changes to these Terms by posting notice on our Retail Websites; if you have registered with Us, we may send you notice via email to the address that You provided during registration. To be sure We properly reach Your email inbox, We just ask that You let Us know if Your preferred email address changes at any time after Your registration. If You object to any such modifications, Your sole recourse shall be to cease using all of Our Retail Websites, Materials and Services. Continued use following notice of any such modifications indicates You acknowledge and agree to be bound by the modifications. Also, please know that these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the Retail Websites. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being

GENERAL USE.

 

By using a retail website, any materials or any service, you promise that you are at least 18 years of age or, if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the retail website, materials and/or service with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to agree to these terms. If you are a parent or legal guardian of a minor, you hereby agree to bind the minor to these terms and to fully indemnify and hold harmlessHATCH Holdings LLCif the minor breaches any of these terms. If you are not at least 13 years old, you may not use any retail website at any time or in any manner or submit any information toHATCH Holdings LLC, any retail website or any service. We invite you to use our retail websites, services and materials for individual, consumer purposes (“Permitted Purposes”) – enjoy!In these terms we are granting you a limited, personal, non-exclusive and non-transferable license to use and to display the materials; your right to use the materials is conditioned on your compliance with these terms. you have no other rights in the retail websites, the services or any materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any retail website, service or materials in any manner. If you make copies of any materials while engaging in permitted purposes then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on the retail website and/or the materials. Unfortunately, if you breach any of these terms the above license will terminate automatically and you must immediately destroy any downloaded or printed materials (and any copies thereof).Any purchases made through our retail websites are subject the applicable terms of purchase.


If you want an account with us, you must submit the following information through the account registration page on one of the retail websites: you must enter your Email and a password. You may also provide additional, optional information so that we can provide you a more customized experience when using the retail websites – but, we will leave that decision with you. We may in our discretion refuse or deny your registration (or cancel your account) for any reason. For so long as you use the account, you agree to provide true, accurate, current, and complete information which can be accomplished by logging into your account and making relevant changes directly or contacting us using the below contact information and we can make the changes for you. and, if you forget your password, you can request a password reset email through the retail websites.You are responsible for complying with these terms when you access our retail websites, whether directly or through any account that you may setup through or on a retail website. Because it is your account, it is your job to obtain and maintain all equipment and services needed for access to and use of the retail websites as well as paying related charges. It is also your responsibility to maintain the confidentiality of your password(s), including any password of a third-party site that we may allow you to use to access the retail websites. Should you believe your password or security for the retail websites has been breached in any way, you must immediately notify us.




PAYMENTS.

 

You agree to pay all applicable charges and fees (including taxes, shipping and handling) related to any purchase You make on or through any Retail Website, which are described in your cart, upon checkout. All payments are processed and collected by our third party service provider, FB Flurry LLC, as the Merchant of Record for such purchases. Returns are subject to our Return Policy, which is incorporated by reference into these Terms.




ELECTRONIC COMMUNICATIONS.

By using any Retail Website and/or the Services and Materials provided on or through the Retail Website, You consent to receiving electronic communications from Us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Retail Website and/or Services and Materials provided on or through the Retail Website.

 

 

 

 

 

We may also ask you to consent to receive text message communicationsfrom us. You may opt-out entirely of receiving any text messages fromus—promotional, transactional, or otherwise—by replying STOP to any textmessage you receive from us. Message and data rates may apply. Byopting in to receive text messages, and depending upon your carrier, youmay be providing us with your name, phone number, carrier information,time stamped information, and information about your mobile device, allof which will be used in accordance with our privacy policy.

 

 

 

Messageand data rates may apply. By providing your mobile number and clickingthe "Submit" button, you consent to receive recurring text messages andsite abandonment reminder messages (including shopping cart or purchasereminders). You also confirm that you have authority to consent toreceive text messages at the number you provide. Reply STOP to anymessage to cancel. Text HELP to any message for help. You understandthat you do not have to sign up for this program in order to make anypurchases, and your consent is not a condition of purchase. By signingup, you are confirming you are over the age of 13, and that you agree toour Privacy Policy and Terms of Use, and that you have the obligationto update your account if you change or deactivate the number we use.You understand that we will send mobile text message using automatedtechnology.

 

 

 

For more information, contact us at textsupport@wunderkind.co

 

 

 

These electronic communications are part of Your relationship with Us. You agree that any notices, agreements, disclosures or other communications that We send You electronically will satisfy any legal communication requirements, including that such communications be in writing.




PRIVACY POLICY.

We respect the information that You provide to Us, and want to be sure You fully understand exactly how We use that information. So, please review Our Privacy Policy (“Privacy Policy”) that explains everything.




LINKS TO THIRD-PARTY SITES.

We think links are convenient, and We sometimes provide links on Our Retail Websites or through Our Services to third-party websites. If You use these links, You will leave the Retail Website or Service. We are not obligated to review any third-party websites that You link to from our Retail Websites or any of Our Services, We do not control any of the third-party websites, and We are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, We do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If You decide to access any of the third-party websites linked to from a Retail Website or Service, You do so entirely at Your own risk and You must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of a Retail Website or Service may allow You to interact and/or conduct transactions with one or more third-party websites, and, if applicable, allow you to configure your privacy settings in that third-party website account to permit Your activities on Our Retail Website or Service to be shared with Your contacts in your third-party site account.




DISPLAY OF MERCHANDISE.

We make reasonable effort to display merchandise on the Retail Websites as accurately as possible. Unfortunately, various factors, including the display and color capabilities of your computer monitor, may significantly affect what you actually see on your screen. We are not responsible for the display of any color, texture or detail of its merchandise on your computer screen and cannot guarantee the accuracy thereof.




SUBMISSIONS.

 

Certain areas of Our Retail Websites (e.g., blogs, or customer ratings and review areas) may permit You to submit feedback, information, data, text, software, messages, or other materials (each, a “User Submission”). You agree that You are solely responsible for all of Your User Submissions and that any such User Submission is considered both non-confidential and non-proprietary. Further, We do not guarantee that You will be able to edit or delete any User Submission You have submitted.By submitting any User Submission, You are promising Us that:

 

 

 

You own all rights in Your User Submissions (including, without limitation, all rights to the reproduction and display of Your User Submissions) or, alternatively, You have acquired all necessary rights in Your User Submissions to enable You to grant to Us the rights in Your User Submissions as described in these Terms;

 

 

 

You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of Your User Submissions;

 

 

 

Your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;

 

 

 

You voluntarily agree to waive all “moral rights” that You may have in Your User Submission

 

 

 

Any information contained in Your User Submission is not known by You to be false, inaccurate, or misleading;

 

 

 

Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;

 

 

 

You were not and will not be compensated or granted any consideration by any third party for submitting Your User Submission;Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than Your own);

 

 

 

Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;

 

 

 

Your User Submission does not contain any information that You consider confidential, proprietary, or personal;

 

 

 

Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

 

 

 

By submitting a User Submission, You grant to Us an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:

 

 

 

Use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display Your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed;

 

 

 

Use (and permit others to use) Your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that We deem appropriate in Our sole discretion (including, without limitation, to incorporate Your User Submission or any modification thereto, in whole or in part, into any technology, product, or service);

 

 

 

Display advertisements in connection with Your User Submissions and to use Your User Submissions for advertising and promotional purposes.

 

 

 

We may, but are not obligated to, pre-screen User Submissions or monitor any area of the Retail Websites or Services through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through Our Retail Websites and may remove at any time or refuse any User Submissions for any reason. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, You agree that We may freely disclose Your User Submission to any third party absent any obligation of confidence on the part of the recipient.




UNAUTHORIZED ACTIVITIES.

 

To be clear, We authorize Your use of the Retail Website, Materials and Services only for Permitted Purposes. Any other use of the Retail Websites, Materials and Services is prohibited and, therefore, constitutes unauthorized use of the Retail Websites, Materials and Services. This is because as between You and Us, all rights in the Retail Websites, Materials and Services remain Our property.

 

 

 

Unauthorized use of the Retail Websites, Materials and/or Services may result in violation of various United States and international copyright laws. Because We prefer keeping this relationship drama-free, We want to give You examples of things to avoid. So, unless You have written permission from Us stating otherwise, You are not authorized to use Our Retail Websites, Materials or Services in any of the following ways (these are examples only and the list below is not a complete list of everything that You are not permitted to do):

 

 

 

For any public or commercial purpose which includes use of a Retail Website or Service on another site or through a networked computer environment;

 

 

 

In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any Materials;

 

 

 

In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;

 

 

 

To stalk, harass, or harm another individual;

 

 

 

To impersonate any person or entity or otherwise misrepresent Your affiliation with a person or entity;

 

 

 

To interfere with or disrupt any Retail Website, Service or servers or networks connected to any Retail Website or Service;

 

 

 

To use any data mining, robots, or similar data gathering or extraction methods in connection with a Retail Website or Service; or

 

 

 

Attempt to gain unauthorized access to any portion of a Retail Website or any other accounts, computer systems, or networks connected to a Retail Website, whether through hacking, password mining, or any other means.

 

 

 

You agree to hire attorneys to defend Us if You violate these Terms and that violation results in a problem for Us. You also agree to pay any damages that We may end up having to pay as a result of Your violation. You alone are responsible for any violation of these Terms by You. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You and, in such case, You agree to cooperate with Our defense of such claim. IF YOU ARE A NEW JERSEY RESIDENT, THIS INDEMNITY IS TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY




PROPRIETARY RIGHTS.

“Motherhood Maternity” “A Pea in the Pod,” “Maternity IP Holdings,” “HATCH Holdings LLC”,“A Pea in the Pod Collection,” “Motherhood,” “Motherhood Maternity Outlet,” and “Secret Fit Belly,” are a few of the trademarks that belongs to Us. Other trademarks, names and logos appearing on Our Retail Websites are the property of their respective owners.Unless otherwise specified in these Terms, all Materials, including the arrangement of them on Our Retail Websites are Our sole property, Copyright © 2016. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.




INTELLECTUAL PROPERTY INFRINGEMENT.

 

We respect the intellectual property rights of others and encourage You to do the same. Accordingly, We have a policy of removing User Submissions that violate intellectual property rights of others, suspending access to Our Retail Websites and Services (or any portion thereof) to any user who uses the Retail Websites, Materials or Services in violation of someone’s intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses a Retail Website, Services or Materials in violation of someone’s intellectual property rights.Pursuant to Title 17 of the United States Code, Section 512, We have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If You believe Your copyright or other intellectual property right is being infringed by a user of a Retail Website or Service, please provide written notice to Our Agent for notice of claims of infringement:

 

HATCH Holdings LLC

412 Broadway

5th Floor

New York, NY 10013

 

To be sure the matter is handled immediately, Your written notice must:

 

  • Contain Your physical or electronic signature;
  • Identify the copyrighted work or other intellectual property alleged to have been infringed;
  • Identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material;
  • Contain adequate information by which We can contact You (including postal address, telephone number, and e-mail address);
  • Contain a statement that You have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
  • Contain a statement that the information in the written notice is accurate; and
  • Contain statement, under penalty of perjury, that You are authorized to act on behalf of the copyright or other intellectual property right owner.
  • Unless the notice pertains to copyright or other intellectual property infringement, the Agent will be unable to address the listed concern.



Submitting a DMCA Counter-Notification

 

We will notify You that We have removed or disabled access to copyright-protected material that You provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, You may provide Our Agent with a written counter-notification that includes the following information:

 

  • Your physical or electronic signature;
  • Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement from You under the penalty of perjury, that You have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
  • Your name, physical address and telephone number, and a statement that You consent to the jurisdiction of a court for the judicial district in which Your physical address is located, or if Your physical address is outside of the United States, for any judicial district in which We may be located, and that You will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person

 

Termination of Repeat Infringers

 

We reserve the right, in Our sole discretion, to terminate the account or access of any user of a Retail Website or Service who is the subject of repeated DMCA or other infringement notifications.

 

DISCLAIMER OF WARRANTIES.

 

OUR RETAIL WEBSITES, MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR RETAIL WEBSITES AND SERVICES IS WITH YOU.WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO OUR RETAIL WEBSITES MATERIALS AND SERVICES, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

 

 

 

THIS MEANS THAT WE DO NOT PROMISE YOU THAT OUR RETAIL WEBSITES, MATERIALS OR SERVICES ARE FREE OF PROBLEMS. Without limiting the generality of the foregoing, We make no warranty that Our Retail Websites, Materials or Services will meet Your requirements or that Our Retail Websites, Materials or Services will be uninterrupted, timely, secure, or error free or that defects in Our Retail Websites, Materials or Services will be corrected. We make no warranty as to the results that may be obtained from the use of Our Retail Website or Services or as to the accuracy or reliability of any information (including Materials) obtained through the Retail Websites or Services. No advice or information, whether oral or written, obtained by You through the Retail Website or Services or from Us or Our subsidiaries/other affiliated companies shall create any warranty. We disclaim all equitable indemnities.




LIMITATION OF LIABILITY.

 

WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE RETAIL WEBSITES OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE. IF YOU ARE A NEW JERSEY RESIDENT, THIS LIMITATION OF LIABILITY SECTION IS TO BE ONLY AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF THE STATE OF NEW JERSEY.

 

LOCAL LAWS; EXPORT CONTROL.

 

We control and operate the Retail Websites and Services from Our headquarters in the United States of America and the entirety of the Retail Website. Materials and/or Services may not be appropriate or available for use in other locations. If You use the Retail Websites, Materials or Services outside the United States of America, You are solely responsible for following applicable local laws. The Retail Websites and Services are intended for customers and users outside the European Economic Area (“EEA”).

 

FEEDBACK.

 

Any submissions by You to Us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and We are free to use, without any attribution or compensation to You, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that We are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and You have no right to compel such use, display, reproduction, or distribution.



DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.

 

Please Read This Provision Carefully. It Affects Your Legal Rights.

 

This Dispute Resolution and Arbitration; Class Action Waiver Provision (this “Provision”) facilitates the prompt and efficient resolution of any dispute (e.g., claim or controversy, whether based in contract, statute, regulation, ordinance, tort – including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence – or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below) that may arise between You and Us. Effectively, then, “Dispute” is given the broadest meaning enforceable by law and includes any claims against other parties relating to services or products provided or billed to You (such as Our licensors, suppliers, dealers or third-party vendors) whenever You also assert claims against Us in the same proceeding.

 

This Provision provides that all disputes between You and Us shall be resolved by binding arbitration because acceptance of these Terms constitutes a waiver of Your right to litigation claims and all opportunity to be heard by a judge or jury. We prefer this because We believe arbitration is less drama-filled than litigation. To be clear, there is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees). You may, however, opt-out of this Provision which means You would have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). EVERYONE AGREES THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.

 

Pre-Arbitration Claim Resolution

 

For all Disputes, whether pursued in court or arbitration, You must first give Us an opportunity to resolve the Dispute which is first done by emailing help@apeainthepod.com the following information: (1)Your name, (2) Your address, (3) A written description of Your Claim, and (4) A description of the specific relief You seek. If We do not resolve the Dispute within 45 days after receiving Your notification, than You may pursue Your Dispute in arbitration. You may pursue Your dispute in a court only under the circumstances described below.

 

Exclusions from Arbitration/Right to Opt Out

 

Notwithstanding the above, You or We may choose to pursue a Dispute in court and not by arbitration if: (a) The dispute qualifies for initiation in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt-out of this Provision by emailing help@apeainthepod.com the following information: (1) Your name; (2) Your address; (3) A clear statement that You do not wish to resolve disputes with Us through arbitration. Either way, We will not take any decision You make personally. In fact, We promise that Your decision to opt-out of this Arbitration Provision will have no adverse effect on Your relationship with Us. But, We do have to enforce the Opt-Out Deadline so keep in mind that any opt-out request received after the Opt-Out Deadline will not be valid and You must pursue Your dispute in arbitration or small claims court.

 

Arbitration Procedures

 

If this Provision applies and the dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either You or We may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.

 

Because this Retail Website and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

 

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.Location of Arbitration – You or We may initiate arbitration in either New York or the federal judicial district that includes Your billing address. In the event that You select the latter, We may transfer the arbitration to New York so long as We agree to pay any additional fees or costs which the arbitrator determines You incur as a result of the transfer.

 

Payment of Arbitration Fees and Costs – So long as You place a request in writing prior to commencement of the arbitration, We will pay all arbitration fees and associated costs and expenses. But, You will still be responsible for all additional fees and costs that You incur in the arbitration which include but are not limited to attorneys’ fees or expert witnesses. In addition to any fees and costs recoverable under applicable law, if You provide notice and negotiate in good faith with Us as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that You are the prevailing party in the arbitration, You will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

 

Class Action Waiver

 

Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both You and We specifically agree to do so following initiation of the arbitration. If You choose to pursue Your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to You. Neither You, nor any other user of this Retail Website can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

 

Jury Waiver

You understand and agree that by accepting this Provision in these Terms, You and We are each waiving the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, You and We might otherwise have had a right or opportunity to bring disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that You would have if You went to court (e.g., the rights to both appeal and certain types of discovery) may be more limited or may also be waived.

 

Severability

 

If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision whose remainder will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the dispute will be decided by a court.

 

Continuation

 

This Provision shall survive the termination of Your account with Us or Our affiliates and Your discontinued use of this Retail Website. Notwithstanding any provision in this Agreement to the contrary, We agree that if We make any change to this Provision (other than a change to the Notice Address), You may reject any such change and require Us to adhere to the language in this Provision if a dispute between Us arises.

 

GENERAL.

We think direct communication resolves most issues – if We feel that You are not complying with these Terms, We will tell You. We will even provide You with recommended necessary corrective action(s) because We value this relationship.However, certain violations of these Terms, as determined by Us, may require immediate termination of Your access to the Retail Websites and Services without prior notice to You. The Federal Arbitration Act, Delaware state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern these Terms. Foreign laws do not apply. Except for disputes subject to arbitration as described above, any disputes relating to these Terms, the Retail Websites, the Materials and/or the Services will be heard in the courts located in New Castle County, Delaware. If any of these Terms are deemed inconsistent with applicable law, then such term(s) shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. By choosing not to enforce any of these Terms, We are not waiving Our rights. These Terms are the entire agreement between You and Us and, therefore, supersede all prior or contemporaneous negotiations, discussions or agreements between Everyone about this Retail Website. The proprietary rights, disclaimer of warranties, representations made by You, indemnities, limitations of liability and general provisions shall survive any termination of these Terms.

 

CALIFORNIA CONSUMER NOTICE.

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: This Retail Website and Service are provided byHATCH Holdings LLC

412 Broadway, 5th Floor, New York, NY 10013. If You have a question or complaint regarding the Retail Website or Service, please contact Customer Service at help@apeainthepod.com. You may also contact Us by calling , 1-877-817-8427, or writingHATCH Holdings LLC

412 Broadway, 5th Floor, New York, NY 10013. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.

 

CONTACT US

If You have any questions about these Terms or otherwise need to contact Us for any reason, You can reach Us at:

 

HATCH Holdings LLC

412 Broadway

5th Floor

New York, NY 10013

 

1-877-603-3029 – (A Pea in the Pod)