Yogscast Store Terms of Sale
Last updated on [16/10/2020]
A quick summary:
These are the (legally binding) rules for the products we supply to you, whether these are goods or services.
Depending on where you live, there are important rules regarding returns, liability and dispute resolution (including mandatory arbitration and waiver of jury trial if you live in the USA).
Our Privacy Policy [https://www.yogscast.com/privacy-policy] explains what information we collect and how we protect it.
This Terms of Sale (or “Agreement” for short) explains who we are, how we will provide products to you, how you and we may change or end the contract, what to do if there is a problem and other important information. (which we explain below). Because we know legal wording is not much fun, we have included a short and informal summary of each section (but the full version is the legally binding one).
1. ABOUT THIS AGREEMENT
This document explains who we are and what the Yogscast Products are. This Agreement is binding as soon on you as you submit an order to us. We can change this Agreement at any time, but if we do we will put the changed version online and normally it will take effect a reasonable time period afterwards. You should also read our Privacy Policy [https://www.yogscast.com/privacy-policy].
1.1 What is this Agreement? This Agreement is a legally binding contract between you and Yogscast Ltd, (incorporated and registered in England and Wales with company number 07620479) of Victoria House, 26 Queen Victoria Street, Reading, Berkshire, RG1 1TG, United Kingdom (“Yogscast”).
1.2 What does this Agreement apply to? This Agreement applies to our goods, services and digital content you can purchase on our store (https://store.yogscast.com/) (we will refer to “Yogscast Product(s)” to cover all of these things).
1.3 When does this Agreement apply to you? This Agreement will be binding on you once you submit an order to us for any Yogscast Products. If you do not agree to it, please do not submit an order for any Yogscast Products
1.4 Will we ever change this Agreement? We may change this Agreement from time to time, for example to reflect changes in our services or to reflect applicable laws. If we do, we will make the changed Agreement available online and make reasonable efforts to notify you of it. It will become legally binding on you and us 30 days after we post it online. Changes to this Agreement do not affect orders already accepted. During that period, you are welcome to contact us at store@yogscast.com if you have specific questions about the changes. If you do not agree to those changes (regardless of whether you email us), then unfortunately you must not submit an order for any Yogscast Products.
1.5 Are there any other important documents you should read? Please also read our Privacy Policy [https://www.yogscast.com/privacy-policy] and other legal guidance, which all form part of this Agreement.
2. OUR CONTRACT WITH YOU
You will receive an acceptance email from us once we accept your order, which will be followed up by an order number. You will be informed if we cannot accept an order.
2.1 How will we accept your order? Our acceptance of your order will take place when we email you to accept it, at which point a contract will come into existence between you and us. We will assign an order number for your order if your order is accepted.
2.2 What will happen if Yogscast cannot accept an order? If we are unable to accept your order, we will inform you of this in writing and will not charge you for the applicable Yogscast Product. This might be because the Yogscast Product is out of stock, because of certain Yogscast Product restrictions (e.g. age restrictions), because we have identified an error in the price or description of the product or because we are unable to meet a delivery deadline you have specified.
3. OUR PRODUCTS
Our products or packaging may vary slightly from the pictures, as this can depend on your device’s settings. We try and make sure product measurements are accurate as possible.
3.1 Will the Yogscast Products appear different in the pictures? The images of the Yogscast Products on our website are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that a device’s display may accurately reflect the appearance of the Yogscast Products (particularly for handmade Yogscast Products). Therefore, your Yogscast Product may very slightly from those images.
3.2 How can I check the measurements of a Yogscast Product? Most Yogscast Products will include their dimensions in the product description. For clothes, we have a sizing chart available here: https://store.yogscast.com/pages/sizing-chart-1.
4. PRICE AND PAYMENT
You will need to pay for the Yogscast Products before they are dispatched to you. The prices for each Yogscast Product will be indicated on the order page inclusive VAT. There may be instances where the price may be incorrect or we need to update the rate of VAT.
4.1 Where can I find the price for Yogscast Products? The price of the Yogscast Products (which may include VAT) will be the price indicated on the order page when you place your order. We take all reasonable care to ensure that the price of the Yogscast Products advised to you is correct. However, please see clause 4.3 for what happens if we discover an error in the price of the Yogscast Product you ordered.
“VAT” means value added tax in the United Kingdom or equivalent in any other jurisdiction.
4.2 What happens if the rate of VAT changes? If the rate of VAT changes (if applicable), we will adjust the rate of VAT that you pay, unless you have already paid for the Yogscast Products in full before the change in the rate of VAT takes effect.
4.3 What happens if Yogscast get the price wrong? It’s always possible that, despite our best efforts, some of the Yogscast Products we sell may be incorrectly priced. We will normally check prices before accepting your order so that, where the Yogscast Product’s correct price is at your order date is less than our stated price at your order date, we will charge the lower amount. If the Yogscast Product’s correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order. If we accept and process your order where a pricing error is obvious and unmistakeable and could reasonably have been recognised by you as a mispricing, we may end the contract, refund you any sums you have paid and require the return of any Yogscast Products provided to you.
4.4 When must I pay and how? We accept payment with most major credit and debit cards and PayPal. You must pay for the Yogscast Products before we dispatch them. We will not charge your credit or debit card until we dispatch the Yogscast Products to you.
5. PROVIDING THE PRODUCTS
This section sets out how the Yogscast Products are delivered to you.
5.1 When will you provide the Yogscast Products to me? During the order process we will let you know when we will provide the Yogscast Products to you.
5.2 Are there any delivery costs? The cost of the delivery will be displayed to you on the website before submitting your order.
5.3 What happens if the Yogscast Product is delayed? If our supply of the products is delayed by an event outside our control, then we will contact you as soon as possible to let you know and we will take steps to minimize the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract and receive a refund for any Yogscast Products you have paid for but not received.
5.4 How is Yogscast Products which are digital content delivered? We will make the digital content available for download when we accept your order.
5.5 When do I own the Yogscast Products? You own a Yogscast Product which is goods once we have received payment in full. It will become your responsibility from the time we deliver the Yogscast Product to the address (or email address, in the case of digital content) you gave us.
6. REFUNDS AND OTHER PRODUCT ISSUES
Depending on where you live, you may have certain rights to return the Yogscast Products.
Obviously, we hope that you’ll really enjoy the Yogscast Products and they will be high quality and be long-lasting. However, from time to time, there can be issues:
6.1 If you live in the European Union: under consumer law, you can contact us in the following scenarios for physical Yogscast Products:
Reason: For any reason, including changing your mind about the Yogscast Product.
Time Limit: Up to 14 days after the Yogscast Product is delivered.
Your Rights: Refund.
You must send the Yogscast Products back to us in its original condition, in its original packaging and at your cost. You will be refunded standard delivery charges.
Reason: If the Yogscast Product is faulty or misdescribed
Time Limit: Up to 30 days after the Yogscast Product is delivered.
Your Rights: Full or partial refund for the Yogscast Product, or have it repaired/replaced.
You must send the Yogscast Product back to us in its original condition. We will pay the costs of return.
Reason: If the Yogscast Product is faulty.
Time Limit: Up to six months after the Yogscast Product is delivered.
Your Rights: Full or partial refund if it cannot be repaired or replaced.
You must send the Yogscast Product back to us. We will pay the costs of return.
You can contact us through store@yogscast.com and we will need to go through any of the processes above. Please make sure you include your order number when you contact us.
For any Yogscast Products which are digital content, you have 14 days after the day we email you to confirm we accept your order, or, if earlier, until you start downloading. If the digital content is faulty, you are entitled to a repair or a replacement.
6.2 If you live in the USA or elsewhere in the world (excluding the European Union): We may, in our discretion, provide you with a refund in certain circumstances. If you are not satisfied with your order, please contact store@yogscast.com.
6.3 When do I not have the right to return a Yogscast Product? You do not have a right to return a Yogscast Product in respect of: (a) products sealed for health protection or hygiene purposes, once these have been unsealed after you receive them; (b) sealed audio, video recordings or computer software, once these products are unsealed after you receive them; (c) Yogscast Products on sale, except where the Yogscast Product is faulty.
6.4 How we will refund you. We will refund you the price you paid for the products (including delivery costs where applicable), by the method you used for payment. However, we may make deductions from the price, as described above.
6.5 When can Yogscast make changes to the Yogscast Products? We may change Yogscast Product(s): (a) to reflect changes in relevant laws and regulatory requirements; and/or (b) to implement minor technical adjustments and improvements. We may also need to update or require you to update any digital content.
6.6 What happens if a Yogscast Product gets recalled? If for some reason there is a serious problem with a Yogscast Product, then we (together with the manufacturer) may decide that the best thing to do is to recall the Yogscast Products. If that happens, we will contact you, explain what has happened and what will happen next.
7. FEEDBACK OR SUGGESTIONS
Feedback and suggestions are great (thank you!) but at our discretion without responsibility/liability.
You are welcome to give us feedback and suggestions to improve the Yogscast Products – in such case you can contact us at store@yogscast.com. We appreciate your feedback and suggestions, but we may choose not to use or accept them at our discretion. In any event the feedback/suggestions will be received by us without any obligations or liability to you, financial or otherwise.
8. WARRANTIES AND LIABILITY
We provide warranties (i.e. legally binding promises) about the Yogscast Products, for example that we will take reasonable care regarding your use of the Yogscast Products. We also explain a bit further how we are legally responsible to each other. We ask for certain legal protections from you (legally, this does not apply to EU customers).
8.1 Our warranties. We represent and warrant that: (i) we have the right to enter into this Agreement; (ii) we will take reasonable care regarding the Yogscast Products; and (iii) we will use reasonable efforts to comply with applicable laws under this Agreement.
8.2 Your warranties to us. You represent and warrant that you have the full power and ability to enter into this Agreement and will follow fully its terms.
8.3 Limitation of liability
The following section does not apply to you if you are resident in the European Union or countries whose laws specifically prohibit the following liability limitations, but it does apply to you if you are (for example) resident in the USA.
(I) OUR DISCLAIMERS. EXCEPT AS WE HAVE SET OUT ELSEWHERE IN THIS AGREEMENT, YOGSCAST AND ITS AFFILIATES, PARTNERS AND LICENSORS DISCLAIM ANY IMPLIED OR EXPRESS WARRANTIES OR REPRESENTATIONS REGARDING THE YOGSCAST PRODUCTS. THIS INCLUDES WITHOUT LIMITATION ANY ALLEGATIONS OF: (I) NEGLIGENCE; OR (II) LACK OF SATISFACTORY QUALITY, MERCHANTABILITY OR FITNESS FOR PURPOSE; OR (III) THE EXISTENCE OF ANY FAULTS OR ERRORS; OR (IV) INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. THE YOGSCAST PRODUCTS ARE OTHERWISE PROVIDED TO YOU ON AN "AS IS", “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, WHICH MIGHT APPLY TO THE YOGSCAST PRODUCTS, INCLUDING WITHOUT LIMITATION: IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE, FREEDOM FROM VIRUSES OR ERRORS OR DEFECTS, AND/OR ANY WARRANTIES AS TO THE ACCURACY, LEGALITY, RELIABILITY OR QUALITY OF ANY CONTENT OR INFORMATION CONTAINED WITHIN THE YOGSCAST PRODUCTS. WE DO NOT WARRANT THAT THE YOGSCAST PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THEY WILL BE FREE OF VRISUES OR OTHER HARMFUL COMPONENTS.
(II) OUR LIABILITY LIMITATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOGSCAST, ITS AFFILIATES, PARTNERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR HARM OF ANY KIND ARISING FROM THE USE OR INABILITY TO USE OR ‘LOSS’ RELATING TO THE YOGSCAST PRODUCTS. YOGSCAST, ITS AFFILIATES, PARTNERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR ANY OTHER DAMAGES ARISING OUT OF OR CONNECTED WITH THE SAME. THIS INCLUDES IF YOU SUFFER DAMAGE BECAUSE YOU CANNOT USE THEM (EITHER TEMPORARILY OR PERMANENTLY). NONE OF THE ABOVE WILL BE AFFECTED IN ANY WAY EVEN IF YOGSCAST OR ITS AFFILIATES, PARTNERS OR LICENSORS ARE AT FAULT (WHETHER THROUGH NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR STRICT LIABILITY) AND EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(III) OUR LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU IN CONNECTION WITH THE YOGSCAST PRODUCTS OR THIS AGREEMENT EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE ACTUALLY PAID US (IF ANY) IN CONNECTION WITH THE MATTERS UNDERLYING ANY CLAIM(S).
(IV) YOUR INDEMNITY TO US. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS ON DEMAND YOGSCAST, ITS AFFILIATES, LICENSORS AND PARTNERS FROM ALL LIABILITIES, CLAIMS AND EXPENSES, INCLUDING LEGAL FEES, IN CONNECTION WITH: (1) ANY ALLEGED OR ACTUAL BREACH OF THIS AGREEMENT; AND/OR (2) THE USE OF THE YOGSCAST PRODUCTS BY YOU OR ANY PERSON ON YOUR BEHALF. IF CLAIMS ARE BROUGHT AGAINST US, THEN YOU WILL COOPERATE FULLY WITH US AND WE RESERVE THE RIGHT TO TAKE OVER THEIR DEFENCE. YOU WILL NOT SETTLE ANY SUCH CLAIMS WITHOUT OUR PRIOR WRITTEN CONSENT.
(V) INJUNCTIVE RELIEF. YOU AGREE THAT ANY LOSS, DAMAGE OR HARM YOU SUFFER IS NOT IRREPARABLE OR SUFFICIENT, AND OTHER REMEDIES WILL BE ADEQUATE, SUCH THAT YOU ARE NOT ENTITLED TO INJUNCTIVE OR OTHER EQUITABLE RELIEF AGAINST US.
(VI) Residents of California. If you reside in the state of California you are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend the 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.”
9. GOVERNING LAW
Any legal questions / complaints / claims regarding this Agreement are under English law and jurisdiction for customers all around the world except customers resident in the USA, who are under California law and jurisdiction.
9.1 If you are resident in the European Union and elsewhere in the world (but not the USA):
You and we agree that your use of the Yogscast Products, and this Agreement, and any issues arising out of them, will be governed by and interpreted according to the laws of England and any dispute regarding it will be exclusively under the jurisdiction of the courts of England. In any legal claim under this Agreement, the side which wins will be entitled to its legal fees and expenses. This does not exclude any mandatorily applicable rules or remedies which would be available to you in a legal claim brought under the law of your EU Member State of residence.
9.2 If you are resident in the USA:
To the extent not covered by the Dispute Resolution and Arbitration language below, you and we agree that the Yogscast Products, and this Agreement, and any issues arising out of them, will be deemed to be entered into in San Francisco, California and governed by and interpreted according to the laws of the State of California, USA (and, if applicable, US Federal law) without regard to choice of law principles. Any legal claim by you against Yogscast, to the extent not covered by the Dispute Resolution and Arbitration language below, will be made exclusively in state or federal court located in San Francisco, California, which will have subject matter jurisdiction regarding the dispute between you and us and therefore we both consent to the exclusive jurisdiction of those courts. Moreover, you waive any rights to argue that the state and federal courts in San Francisco, California are an improper venue. In any legal claim under this Agreement, the side who wins will be entitled to its legal fees and expenses.
10. DISPUTE RESOLUTION AND BINDING ARBITRATION
If you have any concerns or issues you can contact us at store@yogscast.com. We hope we can resolve any complaints with you through informal dispute resolution.
10.1 If you have concerns or issues with us, we hope we can resolve them quickly and amicably – you can contact us at store@yogscast.com. However, we recognise that occasionally there might be legal disputes which are not so easily resolved. In this section we explain what happens if there is a legal dispute.
10.2 Informal dispute resolution:
We and you both agree to make reasonable and good faith efforts to resolve any dispute between us informally. Normally we would suggest that this dispute resolution period lasts 30 days unless exceptional circumstances exist. If it is not resolved during this time, the next steps depend on where you live. If you are resident in the European Union, you may be entitled to submit a complaint through the Online Dispute Resolution Platform operated by the European Commission, details of which can be found at ec.europa.eu/consumers/odr/.
If we can't resolve a dispute with you informally, then this is what happens next.
IMPORTANT: IF YOU LIVE IN THE USA, PLEASE READ THE FOLLOWING SECTIONS CAREFULLY AS IT REQUIRES YOU TO ARBITRATE DISPUTES BETWEEN US ON AN INDIVIDUAL BASIS.
10.3 Dispute resolution next steps: if you live in the European Union or elsewhere in the world (but not the USA):
You and we have the legal right to commence legal claims against each other if we consider it necessary. If you bring a claim against Yogscast, you should address it to store@yogscast.com.
10.4 Dispute resolution next steps: if you live in the USA:
a) Agreement to Arbitrate:
We and you agree to resolve all disputes and claims between us on an individual basis through binding arbitration, including without limitation any claims arising from or relating to this Agreement, any part of the relationship between you and us, or your use of the Yogscast Products, except as set forth under “Exceptions to Informal Dispute Resolution and Agreement to Arbitrate” below. The US Federal Arbitration Act and federal arbitration law applies to this agreement.
"Arbitration" is a consensual dispute resolution process where both sides present their case to a neutral arbitrator rather than a judge or jury. Arbitration is less formal than court litigation and review of an arbitrator’s decision by a court is limited. To be clear: by choosing arbitration you and we give up the right to have any dispute between us heard in court before a judge and/or jury.
Individual Arbitration Only: You and we agree that arbitration will be conducted only on an individual basis and not as a class, consolidated or representative arbitration.
b) How to start an arbitration:
Either of us can commence arbitration by filing an arbitration demand with the AAA that describes the claim and desired remedy. Notice sent to Yogscast should be sent by mail and by email. You or Yogscast may bring an arbitration at any American Arbitration Association (“AAA”) location within the United States.
c) The rules for the arbitration:
The arbitration will be governed by the AAA under its Commercial Arbitration Rules and, where applicable, its Consumer Arbitration Rules (available at http://www.adr.org), as modified by this Agreement. The arbitrator will be bound by this Agreement.
The arbitration shall be conducted in English by a single arbitrator with substantial experience in intellectual property and commercial contract disputes, selected pursuant to AAA rules. The arbitration hearing may be conducted through the submission of documents, by phone, or in person, and must commence within thirty (30) days from the appointment of the arbitrator, unless otherwise agreed by you and Yogscast. Judgment upon an award rendered by the arbitrator may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as appropriate.
If you seek US $10,000 or less, Yogscast will reimburse your filing fee and your share of the arbitration costs (but not your attorney’s fees or expert witness fees), at the end of the arbitration, unless the arbitrator decides your claims are without merit or your costs are unreasonable. Yogscast will only seek its legal fees and costs if it prevails and the arbitrator determines your claims are meritless. If you seek more than US $10,000, then the arbitration costs, including arbitrator compensation, will be split between you and Yogscast per the applicable AAA rules.
10.5 Exceptions to Informal Dispute Resolution and Agreement to Arbitrate
The dispute resolution and arbitration requirements do not apply to claims or disputes that relate to claims of intellectual property rights infringement or claims of Yogscast use, piracy, theft or misappropriation.
10.6 Limitation on Claims
You and Yogscast agree that, regardless of any statute or law to the contrary, any claim arising out of or related to the Yogscast Products must be made within one (1) year after the claim arose; otherwise, such claim is permanently barred. You agree that these dispute resolution and binding arbitration provisions will survive any termination of our contract or the Yogscast Products.
If you live in the USA or the rest of the world (but not the EU), you and we agree not to bring any class action or similar collective legal action against each other. We will resolve legal disputes with each other through the process outlined above.
10.7 Waiver of collective action remedies:
To the maximum extent permitted by the national or state law applicable, you and we agree not under any circumstances to bring or participate in a class or representative action, private attorney general action or collective arbitration. That means, to the full extent permitted by law: (1) no arbitration shall be joined with any other; (2) there is no right or authority for any dispute to be arbitrated on a class-wide basis or to utilise class action procedures; and (3) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
If the previous paragraph is found illegal or unenforceable for any reason, you and Yogscast agree that any class, representative private attorney general action claim or dispute will be resolved in court.
11 FORCE MAJEURE
If unforeseen events beyond your or our control take place then neither of us will be liable to the other for any obligations which cannot be performed.
11.1 Neither of us will be liable to the other regarding any performance, or non-performance, or delay, in whole or in part, due to Force Majeure.
“Force Majeure” means any cause preventing a party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including strikes, lock-outs or other industrial disputes (other than any such dispute involving the workforce of the party so prevented), nuclear accident or acts of God, war or terrorist activity, riot, civil commotion, malicious damage (excluding malicious damage involving the employees of the affected party or its sub-contractors), compliance with any law or governmental order, rule, regulation or direction, industrial action by employees of any providers of electrical power, failure of technical facilities, hacking, denial of service or other IT attack, deployment of IT virus malware or similar technology, fire, flood, or storm or default of suppliers or sub-contractors.
12. OTHER LEGAL MATTERS
This section sets out a few additional, hopefully self-explanatory rules about how this Agreement works legally. For example, this Agreement is just between you and us, we might be required to comply with law enforcement requests etc.
i. If any part of this Agreement is found not to be legally enforceable, this will not affect any other part of it;
ii. This Agreement governs our relationship with you (and vice versa). It does not create any rights for anyone else;
iii. Please remember that we are subject to various laws and we may be required to comply with law enforcement or other legal requirements, including import/export controls;
iv. You and we agree that the UN Convention on Contracts for the International Sale of Goods does not apply to the Yogscast Products or this Agreement;
v. We can assign, subcontract or transfer this Agreement to a third party or another member of our group if necessary for the support of the Yogscast Products, as part of any reorganisation or merger or for other business reasons. We will notify you if this happens;
vi. No failure or delay by us or you to exercise any right or remedy provided under this Agreement or by law will constitute a waiver of that or any other right or remedy, nor will it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy by us or you will preclude or restrict the further exercise of that or any other right or remedy; and
vii. This Agreement does not create any exclusive relationship between us nor any partnership, joint venture, employment or agency.