TERMS & CONDITIONS

Last Updated on March 7, 2023

These Terms of Service (“Terms”) apply to your access to and use of (i) the websites located at www.funko.com, and all successor links and associated web pages, websites, and social media pages (the “Sites”) provided by Funko, LLC or its subsidiaries (“Funko”, “we”, “our” or “us”), (ii) mobile applications that may be downloaded to your smartphone or tablet (each an “App”), (iii) online services (including the Site and the App, together the “Services”) and (iv) products accessible via the Site and the App (the “Products”).

By using our products or services, you agree to these terms and agree that except (I) for certain types of disputes described in Section 16, (II) where you exercise your right to opt out of arbitration as described in Section 16, or (III) to the extent prohibited by law, disputes between you and Funko will be resolved solely on an individual basis and not as a class arbitration, class action, any other kind of representative proceeding, or by jury trial.Further, terms of sale in Section 5 will apply with respect to any Products that you purchase from us. If you do not agree to these Terms, do not use our Products or Services.

We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Products or Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Products or Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.

We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Products or Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Products and Services.

  1. Eligibility and Use Restrictions

    1. Age. Users under 18 years of age (or the age of legal majority where the user lives) may only use our Products and Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Products and Services. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Products or Services without your consent, please contact us at support@funkopopus.com.

    2. Jurisdiction. You may only use our Products and Services in jurisdictions authorized by Funko. Use of our Products and Services is currently authorized only in the United States and Canada (the “Territories”).

  2. Your Information

    You may provide certain information to Funko in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You represent and warrant that any information that you provide to Funko in connection with the Services is accurate. For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy.

  3. Accounts

    You may create an account with Funko to use some or all of our Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other website or online service. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.

  4. Prohibited Conduct

    1. You will not use our Products or Services if you are not eligible to use our Products or Services in accordance with Section 1 and will not use our Products or Services other than for their intended purpose. Further, you will not, in connection with our Products or Services:

      • Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;

      • Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;

      • Use or attempt to use another user’s account or information without authorization from that user and Funko;

      • Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;

      • Sell or resell our Services;

      • Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Products or Services, except as expressly permitted by us or our licensors;

      • Modify our Products or Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Products or Services;

      • Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;

      • Reverse engineer any aspect of our Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;

      • Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robots.txt file and only to compile for search results, provided that Funko grants to the operators of public search engines permission to use spiders to copy materials from the Sites for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Funko reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;

      • Develop or use any applications that interact with our Services without our prior written consent;

      • Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;

      • Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our or any of our partner’s reputations or suggests any form or association, approval, or endorsement by the Funko or our partners, including our licensing partners; or

      • Use our Products or Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.

    2. Enforcement of this Section 4 is solely at Funko’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.

  5. Terms of Sale

    By purchasing a Product through the Services (a “Transaction”), you agree to the terms set forth in this Section 5 (the “Terms of Sale”).

    1. Eligibility. To complete your purchase, you must have a valid physical billing and shipping address within the Territories.

    2. Restrictions. You may only purchase Products for personal, family or household purposes use by either yourself or your intended recipient of the Products. We may place a limit on the quantities that may be purchased per order, per account, per payment card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.

    3. Price. Prices shown on the Sites and in the App exclude all taxes or charges for shipping and handling. Taxes and, unless otherwise agreed by Funko, shipping and handling costs will be added to the amount of your purchase and itemized on the checkout page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices on the Sites and in the App are subject to change at any time without notice. We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase from the Sites and in the App.

    4. Payment. If you wish to make a Transaction, you may be asked to supply certain relevant information, such as your payment card number and its expiration date, your billing address, and your shipping information, to us or our payment processors. You represent and warrant that you have the right to use any payment card that you submit in connection with a Transaction. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us. You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any Transaction. You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your Transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ or other legal fees and other legal expenses.

    5. Order Confirmation; Acceptance. You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. We will display or send a notice when we ultimately accept your order, and our acceptance will be complete at the time we display or send the formal acceptance notice. Payment must be received by us before our acceptance of an order.

    6. Shipping; Delivery. Products will be shipped to the address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions set forth in these Terms. You will pay all shipping and handling charges specified during the ordering process. All Transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Products pass to you upon delivery of the Products by Funko to the carrier. Unless otherwise agreed by Funko, you are responsible for filing any claims with carriers for damaged and/or lost shipments. Any shipping dates provided are approximate and not guaranteed. We are not liable for any delays in shipments.

    7. Order Delays; Cancellation. We reserve the right to delay, refuse, or cancel any order prior to delivery. For example, if there are errors on the Sites or made in connection with your order or inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We will contact you if any portion of your order is canceled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.

    8. Reservation of Rights. The availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Funko reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar you from making any Transaction; to alter the payment option for Products; and to refuse to provide you with any Product.

    9. Disclaimer. Weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.

  6. Returns Policy

    1. Submitting a Return. If for any reason you decide to return a Product that you purchased from our Services or that was otherwise obtained through our Services, except as otherwise described in this paragraph, you must submit a return claim (a “Return Claim”) through our online form (a “Return Claim”), the link for which will be made available to you by email or through your account in connection with your Product order. Note, you may not submit a claim through our online form if you intend to ship your return from APO/FPO (GU,AA, AE and AP)/AS/Virgin Islands, and if you intend to ship your return from these locations, you may only initiate a Return Claim by reaching out to our customer service team at support@funkopopus.com. In connection with your Return Claim, you may be asked to provide, amongst other information: (i) your name, address, email address, and telephone number and (ii) a copy of your receipt or other comparable proof of purchase for the Product being returned. Verification of information may be required prior to the acknowledgment of any Return Claim. Following receipt of your Return Claim submitted with all required information in accordance with the procedure set forth in this section, Funko will provide notice to you of Funko’s decision as to whether to proceed with or deny your Return Claim. If Funko elects to proceed with your Return Claim, Funko will provide a return merchandise authorization number and email a shipping label to you. To obtain a refund, you must (1) initiate the return of the Product to Funko within thirty (30) days from the date the Product was originally delivered by or on behalf of Funko to you or your designated recipient and (2) using the shipping label provided by or on behalf of Funko, ship the Product to Funko or its designee within ten (10) days of initiating the return. In order to receive a refund, the returned Product must not be subject to any of the exclusions set forth below.

    2. Exclusions.

      • Funko will not accept returns of Products purchased from other retailers. Those Products are subject to that retailer’s return policies and Funko disclaims any liability with respect to the return of such Products.

      • Additionally, Funko will not accept a return of any Products if the Product:

        1. is not in its original condition with all original, sealed packaging,

        2. is apparel that has been worn or washed,

        3. is apparel that does not contain all original tags attached,

        4. is a Pop! Yourself product,

        5. was marked at the time of sale as a “Funko-Shop” exclusive or as a “final sale” item,

        6. is a Premium Packaging Add On (e.g., pop protector, gift box, gift bag),

        7. was purchased in bulk (i.e., 6 or more of the same Product),

        8. is returned via a return (i) initiated more than thirty (30) days from the date the Product was delivered by or on behalf of Funko to you or your designated recipient or (ii) shipped to Funko more than ten (10) days from the date the Product return was initiated;

        9. is not purchased through our Services (e.g., bonus items obtained for free or products purchased at our stores or from third party websites or stores),

        10. is returned by any person other than (i) the original purchaser of the Product or (ii) a subsequent owner who can provide proof of the initial purchase of the Product, or

        11. is returned from outside of the Territories.

      • Minor variations with respect to Products and blemishes to Product packaging will not be considered damage, and Funko may deny returns of Products with such variations or blemishes in its sole discretion.

      • Funko will also not accept return claims that are submitted via Funko’s online form and are shipped from APO/FPO(GU,AA, AE and AP)/AS/Virgin Islands. If you desire to ship a return from APO/FPO (GU,AA, AE and AP)/AS/Virgin Islands, you may only initiate a return claim by reaching out to our customer service team at support@funkopopus.com.

    3. Refunds. Funko does not take title to returned Products, and risk of loss does not pass to Funko, until the Product is received by Funko. Unless otherwise agreed by Funko, you are responsible for filing any claims with carriers for damaged and/or lost return shipments. Once the Product has been returned to Funko in accordance with this Returns Policy (as defined below) and the return has been received and processed by Funko, Funko will issue a refund to the original payment method used to purchase the Product for the full amount of the original purchase price (including any associated sales tax), minus, the shipping and handling costs incurred by Funko in connection with your Return Claim and any applicable restocking fees. For items given or received as a gift, Funko is only able to issue a refund to the payment method used by the original purchaser. Unless prohibited by law, any shipping and handling charges paid for the original purchase will not be refunded.

    4. Exchanges. Funko does not currently permit exchanges of any Products.

    5. This Section 6 (our “Returns Policy”) is in addition to any statutory rights you may have under law. Nothing in this Returns Policy is intended to limit your statutory rights, and Funko may accept returns that fail to meet our return criteria described above in accordance with your statutory rights or otherwise in our sole discretion.

  7. Promotions

    Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms, the Promotion rules will govern.

  8. Ownership; Limited License

    The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and Products, and all intellectual property rights therein and thereto, are owned by Funko or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services and Products, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Section 4), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Products and Services for personal, noncommercial, or household use and solely with respect to any applications included in the Services, install and use such application on a mobile or personal device that you own or control. Any use of the Products or Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. Any applications included in the Services are licensed (not sold), and if you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the applicable application and remove (that is, uninstall and delete) the applicable application from your mobile or personal device.

  9. Trademarks

    Funko, Pop!, Loungefly, and our logos, product or service names, slogans, and the look and feel of our Products and Services are trademarks of Funko and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with our Products or Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.

  10. Feedback

    You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Funko or our Products or Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback, or Products or Services, or to improve or develop new products, services, or the Products or Services in Funko’s sole discretion. Funko will exclusively own all improvements to, or new, Funko products, services, or Products or Services based on any Feedback. You understand that Funko may treat Feedback as nonconfidential.

  11. Third-Party Content

    1. Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (i) the use and availability of the Services is dependent on third-party product vendors and service providers and (ii) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Products or Services operate.

    2. We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party. When you click on links to various merchants on the Sites and make a purchase, this can result in us earning a commission. Affiliate programs and affiliations include, but are not limited to, the eBay Partner Network.

    3. We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.

  12. Indemnification

    To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Funko and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “Funko Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Claims”) arising out of or related to (a) your access to or use of the Products or Services; (b) your Feedback or User Content (as defined below); (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Funko Parties of any third-party Claims, cooperate with Funko Parties in defending such Claims, and pay all fees, costs, and expenses associated with defending such Claims (including attorneys’ or other legal fees). The Funko Parties will have control of the defense or settlement, at Funko’s sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Funko or the other Funko Parties.

  13. Disclaimers

    Your use of our Products and Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Products, Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. Except to the extent prohibited by law, Funko disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, to the fullest extent permitted by law, Funko does not represent or warrant that our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Products or Services or any content provided in or with our Services (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While Funko attempts to make your use of our Products and Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and, to the fullest extent permitted under applicable law, do not represent or warrant that our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Products and Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Funko, Funko Parties, and Funko’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.

  14. Limitation of Liability

    1. To the fullest extent permitted by applicable law, Funko and the other Funko Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Funko or the other Funko Parties have been advised of the possibility of such damages.

    2. The total liability of Funko and the other Funko Parties for any claim arising out of or relating to these Terms or our Products or Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Products and Services.

    3. The limitations set forth in this Section 14 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Funko or the other Funko Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.

  15. Release

    To the fullest extent permitted by applicable law, you release Funko and the other Funko Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”

  16. Dispute Resolution; Binding Arbitration

    Please read this section carefully because it requires you and Funko to arbitrate certain disputes and claims and limits the manner in which we can seek relief from each other. Arbitration precludes you and Funko from suing in court or having a jury trial. You and Funko agree that arbitration will be solely on an individual basis and not as a class arbitration, class action, or any other kind of representative proceeding. Funko and you are each waiving the right to trial by a jury. No class or representative actions or arbitrations are allowed under this arbitration agreement.

    1. Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against Funko, that Funko has against you or that you have, or Funko has, in each case relating in any way to these Terms or the Sites, or any aspect of the relationship between you and Funko as relates to these Terms or the Sites (collectively, “Claims” and each a “Claim”), you and Funko agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Funko, you will first contact Funko by sending a written notice of your Claim (“Claimant Notice”) to Funko by certified mail addressed to Funko, LLC, Attn: Legal, 2802 Wetmore Avenue Everett, WA 98201 or by email to support@funkopopus.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Funko asserts a Claim against you, Funko will first contact you by sending a written notice of Funko’s Claim (“Funko Notice”) to you via email to the primary email address associated with your Account. The Funko Notice must (x) include the name of a Funko contact and the contact’s email address and telephone number; (y) describe the nature and basis of the Claim; and (z) set forth the specific relief sought. If you and Funko cannot reach an agreement to resolve the Claim within thirty (30) days after you or Funko receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Funko first send a Claimant Notice or a Funko Notice, so that the parties can engage in this informal dispute-resolution process.

    2. Claims Subject to Binding Arbitration; Exceptions. Except for (i) small claims disputes in which you or Funko seek to bring an individual action in small claims court located in the jurisdiction of your billing address or (ii) any disputes exclusively related to the intellectual property or intellectual property rights of you or Funko, including any disputes in which you or Funko seek injunctive or other equitable relief for the alleged unlawful use of your or Funko’s intellectual property or other infringement of your or Funko’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 16(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.

    3. Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.

    4. Arbitration Procedures. All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA, and the then-current version of the AAA’s Consumer Arbitration Rules, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and Funko:

      • You and Funko agree that any arbitration under these terms will take place on an individual basis; class arbitrations and class actions are not permitted, and you and Funko are agreeing to give up the ability to participate in a class action. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Funko or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.

      • For any arbitration you initiate, you will pay the consumer filing fee, and Funko will pay the remaining AAA fees and costs. For any arbitration initiated by Funko, Funko will pay all AAA fees and costs.

      • For all arbitrations where the Claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location that is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, and (iii) if the parties are unable to agree on a location, such determination will be made by the AAA or by the arbitrator.

      • If you or Funko submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Funko agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Funko agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.

      • In addition, the provisions of Federal Rule of Civil Procedure 68 shall apply and be enforced by the arbitrator.

      • The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.

      • The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Funko or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Funko understand and agree that, when twenty-five (25) or more similar claims are asserted against Funko or you by the same or coordinated counsel or are otherwise coordinated, resolution of your or Funko’s Claim might be delayed. For such coordinated actions, you and Funko also agree to the following coordinated bellwether process:

        • Counsel for the claimants and counsel for Funko shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings.

        • A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.

        • This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.

        • The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or Funko’s case is selected for a bellwether process, withdrawn, or otherwise resolved.

        • A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Funko or you.

    5. One Year to Assert Claims. To the extent permitted by law, any Claim or dispute by you or Funko arising out of or related to these Terms or the Sites, or any aspect of the relationship between you and Funko as relates to your use of the Sites, in each case other than IP Claims, must be filed within one year after such Claim or dispute arose; otherwise, the claim is permanently barred, which means that you and Funko will not have the right to assert the claim.

    6. Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us notice of your opt-out via email at legal@funkopopus.com or by certified mail addressed to Funko, LLC, Attn: Legal, 2802 Wetmore Avenue Everett, WA 98201. In order to be effective, the opt-out notice must include your full name, and mailing address, and email address and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 17.

    7. Rejection of Future Arbitration Changes. You may reject any change we make to Section 16 (except address changes) by personally signing and sending us notice within 30 days of the change via email at legal@funkopopus.com or by certified mail addressed to Funko, LLC, Attn: Legal, 2802 Wetmore Avenue Everett, WA 98201. If you do, the most recent version of Section 16 before the change you rejected will apply.

    8. Severability. If any portion of this Section 16 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 16 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 16; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 16 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 16 will be enforceable.

  17. Governing Law

    Any Claims will be governed by and construed and enforced in accordance with the laws of the State of Washington, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 16, then the state and federal courts located in Kings County, Washington, will have exclusive jurisdiction. You and Funko waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.

    If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this Section 17 may not apply to you only to the extent that local law conflicts with this Section 17.

  18. Modifying and Terminating Our Products or Services

    We reserve the right to modify our Products or Services or to suspend or terminate providing all or part of our Products or Services at any time; charge, modify, or waive any fees required to use the Products or Services; or offer opportunities to some or all end users of the Products or Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Products or Services, such as by sending an email or providing a notice through our Products or Services. All modifications and additions to the Products and Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Funko in writing. You also have the right to stop using our Products and Services at any time, and you may terminate these Terms by ceasing use of our Products and Services. We are not responsible for any loss or harm related to your inability to access or use our Products or Services.

  19. Severability

    If any portion of these Terms (other than Section 16) is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.

  20. Export Control

    You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.

  21. Miscellaneous

    1. Funko’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.

    2. If you have a question or complaint regarding the Products or Services, please send an email to support@funkopopus.com. You may also contact us by writing to Funko, LLC, Attn: Legal, 2802 Wetmore Avenue Everett, WA 98201. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.

  22. Additional Terms Applicable to Mobile Devices

    The following terms apply if you install, access, or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).

    1. Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. Funko, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the Apple iOS App Store will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.

    2. Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple iOS App Store Terms of Service.

    3. Maintenance and Support. You and Funko acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.

    4. Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Funko. However, Funko has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.

    5. Product Claims. You and Funko acknowledge that as between Apple and Funko, Funko, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.

    6. Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, Funko, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.

    7. Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to: support@funkopopus.com.

    8. Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.

    9. Third-Party Beneficiary. Apple and its 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 thereof.

  23. Additional Terms Applicable to Pop! Yourself

    The following terms (the “POP! Yourself Terms”) apply solely to access to and use of the Pop! Yourself products and services and all associated services, webpages, and websites (“Pop! Yourself Services”).

    1. User Content. We may allow you and other users to create, post, store and share content in connection with our Pop! Yourself Services (collectively, “User Content”). Except for the license you grant below, as between you and Funko, you retain all rights in and to your User Content, excluding any portion of our Products or Services included in your User Content. You grant Funko and its subsidiaries and affiliates and our end users a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content, in all media formats and channels now known or later developed without compensation to you or any third party, as necessary to provide the Pop! Yourself Services to you. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.

    2. Prohibited User Content. Do not use or provide to Funko any User Content that does not belong to you (this includes any content that you might have found elsewhere on the Internet and third-party logos, imagery, phrases, or trademarks, even if you have made changes to these items). You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such content as permitted by these Pop! Yourself Terms, will not violate any rights of or cause injury to any person or entity or otherwise infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party. Further, you may not create, post, use or provide to Funko any User Content that:

      • Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;

      • Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;

      • Impersonates, or misrepresents your affiliation with, any person or entity;

      • Contains any unsolicited promotions, political campaigning, advertising, or solicitations;

      • Contains any private or personal information of a third party without such third party’s consent; or

      • In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Pop! Yourself Services, or may expose Funko, our partners, or others to any harm or liability of any type.

    3. Enforcement. Enforcement of these Pop! Yourself Terms are solely at Funko’s discretion, and failure to enforce these Pop! Yourself Terms in some instances does not constitute a waiver of our right to enforce it in other instances. These Pop! Yourself Terms do not create any right or private right of action on the part of any third party or any reasonable expectation that the Pop! Yourself Services will not use or involve any content that is prohibited by these Pop! Yourself Terms.

    4. Remedies. We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:

      • Refuse to use any User Content or refuse to allow you to submit an order using any User Content, at any time and for any reason with or without notice, which is reasonably likely, in our sole discretion, to violate applicable law or these Pop! Yourself Terms;

      • Terminate or suspend your access to all or part of the Pop! Yourself Services, cancel your outstanding orders, and terminate or suspend your account, temporarily or permanently, at any time and for any reason with or without notice, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Pop! Yourself Terms;

      • Take any action with respect to your User Content that is necessary or appropriate, in Funko’s sole discretion, to ensure compliance with applicable law and these Pop! Yourself Terms, or to protect Funko’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and

      • As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Pop! Yourself Services.

    5. Repeat Infringer Policy; Copyrights Complaints. In accordance with the Digital Millennium Copyright Act (“ DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our “DMCA Policy“). If you believe that any content provided to Funko by a user or otherwise used in connection with our Pop! Yourself Services infringes any copyright that you own or control, you may notify Funko’s designated agent (your notification, a “DMCA Notice”) as follows:

      Designated Agent:

      Legal Department

      Address:

      Funko, LLC

      2802 Wetmore Ave.

      Everett, WA 98201

      Telephone Number:

      (425) 783-3616

      Email Address:

      legal@funkopopus.com

      Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material used in connection with our Pop! Yourself Services is infringing, you may be liable to Funko for certain costs and damages.

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