Terms & Condition

1 . INTRODUCTION Welcome to the OUCH.COM website and co-branded versions of the website located at URLs that resolve to the domain name OUCH.COM (the “Website” or “Site”). As you have no doubt experienced with virtually all websites, your use of this Site, as well as the use of any OUCH-branded mobile application on your smartphone or handheld device (“Mobile App”), is subject to certain terms and conditions of use ( collectively “Terms”) set forth below. These Terms are important for both you and us as they create a legally binding agreement between us, protecting your rights as a valued customer and our rights as a business.

 

PLEASE READ THESE TERMS CAREFULLY BEFORE USING AND/OR PLACING AN ORDER FROM THIS WEBSITE OR THE MOBILE APP. THEY MAY SEEM TECHNICAL AND LEGALISTIC, BUT THEY ARE IMPORTANT. BY USING THIS SITE, OUR MOBILE APP, AND/OR PLACING AN ORDER FROM THIS SITE OR THE MOBILE APP, YOU ACCEPT THESE TERMS, THE OUCH GIFT CARD GENERAL TERMS AND CONDITIONS (“GIFT CARD TERMS”), AND OUR PRIVACY POLICY WITHOUT ANY RESERVATIONS OR QUALIFICATIONS, AND YOU AGREE TO BE BOUND BY THESE TERMS, THE GIFT CARD TERMS, AND OUR PRIVACY POLICY. THIS INCLUDES, WITHOUT LIMITATION, ACCEPTING THE TERMS RELATING TO BINDING ARBITRATION, WAIVER OF THE RIGHT TO CLASS ACTION, DISCLAIMER OF WARRANTIES, DAMAGE AND REMEDY EXCLUSIONS AND LIMITATIONS, AND NIGERIAN CHOICE OF LAW AS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THESE TERMS OR OUR PRIVACY POLICY, WHETHER IN WHOLE OR IN PART, PLEASE DO NOT USE THE SITE OR OUR MOBILE APP, OR ANY OF THE SERVICES PROVIDED ON THE SITE OR THE MOBILE APP, OR PLACE AN ORDER FROM THE SITE OR THE MOBILE APP.

 

These Terms constitute an agreement between you (hereinafter, “you” or “your”) on the one hand, and OUCH NIG, Inc., a Nigerian corporation with its principal address at BLOCK 69, SIXTY NINE MALL, ADMIRALTY WAY LEKKI PHASE 1, LEKKI LAGOS STATE. (hereinafter collectively, “us,” “our,” “we,” “OUCH” or the “Vendor”) on the other hand, in relation to your use of the Website or Mobile App, the goods/services offered and sold through this Website or the Mobile App, and any orders you place through the Website or Mobile App (collectively, the “OUCH Services”). Before you place an order, please carefully read these Terms, the Gift Card Terms and our Privacy Policy.

If you have any questions about the Terms, the Gift Card Terms, or the Privacy Policy, you may contact us via the contact information provided on our “Contact Us” webpage on the Site.

2. DISPUTES

You agree that any controversy or claim arising out of or relating to the Terms, the Gift Card Terms, the Site, the Mobile App, the Privacy Policy, and/or the OUCH Services shall be subject to the Jurisdiction of the Lagos Multi Door Court House (LMDC) or determined by the arbitration as set forth herein or at such other location as may be mutually agreed upon by the parties, in accordance with the applicable procedural rules set forth in the then prevailing Arbitration and Conciliation Act in Nigeria and upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall be selected pursuant to the applicable Law and or as mutually agreed by the parties. Alternatively, you may assert your claims in small claims court in accordance with the terms of these Terms if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The arbitrator shall apply Nigerian law consistent with the Arbitration and conciliation Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. The person initiating the proceedings will bear the cost of arbitration. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than the condition that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by the prevailing law then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither claimant nor OUCH shall be entitled to arbitrate their dispute. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED.

 

BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION. DO NOT USE THE SITE OR MOBILE APP, ANY OF THE SERVICES PROVIDED ON THE SITE OR MOBILE APP, OR PLACE AN ORDER FROM THE SITE OR MOBILE APP IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 

YOU FURTHER AGREE THAT ANY DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE SITE, THE MOBILE APP, THE PRIVACY POLICY, THE GIFT CARD TERMS, AND/OR THESE TERMS WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.

Any disputes arising out of or relating to these Terms, the Gift Card Terms, the Privacy Policy, the Site, the Mobile App, and/or the OUCH Services shall be resolved in accordance with the laws of Lagos state of Nigeria , without regard to its conflict of law rules. Any disputes, actions or proceedings relating to these Terms or your access to or use of the Site or the Mobile App not subject to the arbitration provisions set forth herein must be brought in the Federal or state courts located in the Lagos state of Nigeria and you irrevocably consent to the exclusive jurisdiction and venue of such courts.

3. USE OF OUR WEBSITE AND/OR MOBILE APP

You agree that:

  1. You may only use the Website and/or Mobile App to make legitimate inquiries or orders
  2. You will not make any speculative, false or fraudulent orders. If we are reasonably of the opinion that such an order has been made, we shall be entitled to cancel the order and inform the relevant authorities.
  3. You also agree to provide correct and accurate email, postal and/or other contact details to us and acknowledge that we may use these details to contact you in the event that this should prove necessary (see our Privacy Policy for more information on how we use your personal information).
  4. If you do not give us all of the information that we need, we may not be able to complete your order.
  5. You will not attempt to interfere or interfere in any way with the Site’s network, the Mobile App’s network, or our networks, or related network security, or attempt to use the Site’s or Mobile App’s service to gain unauthorized access to any other computer system.
  6. You will not use the Site or Mobile App to communicate, transmit, or post material that infringes on the intellectual property, privacy or publicity right of another person or entity.
  7. You will not use the Site or Mobile App to engage in conduct that would constitute a civil or criminal offense, or that otherwise violates any, state, national or international law or regulation.
  8. By placing an order through the Website or Mobile App, you represent and warrant that you are at least 18 years old and are legally capable of entering into binding contracts.

4. HOW PURCHASE CONTRACTS ARE FORMED No contract (“Contract”) in respect of the purchase of a product offered on the Site or Mobile App shall exist between you and us until your order has been accepted by us and we send you the Shipment Confirmation (defined below). If we do not accept your order and funds have already been deducted from your account, the funds will be fully refunded. To place an order, you will be required to follow the shopping process online and press the “Finalize Order” button to submit the order. After this, you will receive an email from us acknowledging that we have received your order (the “Order Confirmation”). Your order constitutes your offer to us to buy one or more products from us for personal use and not for resale purposes. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an email that confirms that the product has been dispatched or, if you selected the Pick-up In Store option (where available), by sending you an email and/or text message (if you so authorize at the time of purchase) that the product is available for in-store pickup at the store you designated during the checkout process (collectively, the “Shipment Confirmation”). We will not be bound to supply any other products which may have been part of your order until the dispatch of such products has been confirmed in a separate Shipment Confirmation. Notwithstanding the foregoing, your card or other method of payment will not be charged until your order is accepted and shipped. However, it may show a pre-authorization of the funds immediately upon order. You acknowledge and agree that we do not make any warranty or guarantee regarding when the Product will be available for pickup through the Pick-up in Store option. For all purchases made through the Site or the Mobile App, you acknowledge and agree that your purchase receipt will be provided electronically only; paper copies of receipts will not be provided.

5. AVAILABILITY OF PRODUCTS

All orders for products are subject to availability and in this regard, in the event of supply difficulties or because products are no longer in stock, we reserve the right to give you information about substitute products of an equal or higher quality and value which you can order. If you do not wish to order such substitute products, we will refund any monies that you might have paid. If you have chosen the Pick-up in Store option, we reserve the right to subsequently notify you that the product(s) you have ordered are not available for the Pick-up in Store option; in such a case, you will be required to elect an alternate delivery method.

6.          REFUSAL OF ORDER

We reserve the right to withdraw any product from the Website or Mobile App at any time and/or remove or edit any materials or content on the Website or Mobile App. While we will make reasonable efforts to process all orders, there may be exceptional circumstances that may require us to refuse to process an order after we have sent you an Order Confirmation; and we reserve the right to refuse to process an order at any time, at our sole discretion.

We will not be liable to you or any other third party by reason of our withdrawing any product from the Website or Mobile App, whether it has been sold or not, removing or editing any materials or contents on the Website or Mobile App or for refusing to process or accept an order after we have sent you the Order Confirmation.

7. DELIVERY

Subject to the provisions of Clause 6 above, and unless there are any exceptional circumstances, we will endeavor to fulfill your order for product(s) listed in the Shipment Confirmation by the delivery date set out in the Shipment Confirmation or, if no estimated delivery date is specified, within 15 business days of the date of the Shipment Confirmation. Delivery to Alaska and Hawaii may take up to 20 business days of the Shipment Confirmation.

Reasons for delay could include:

  1. Customization of products;
  2. Specialized products;
  3. Unforeseen circumstances; or
  4. Delivery area.

For signature required deliveries (which is generally determined by the carrier), we will after the initial delivery, make two (2) additional attempts to deliver your parcel before initiating a return. For the purpose of these Terms, the “delivery” shall be deemed to have occurred or the goods shall be deemed to “have been delivered” upon receipt of the product(s) at the designated delivery address at the designated delivery address, or upon in-store pickup, as applicable. However, e-/virtual gift cards shall be deemed to “have been delivered” in accordance with the Gift Card Terms pertaining to gift cards

 

Which may be found at: Gift Card Conditions and, in any case, on the date of delivery of such e/virtual gift card to the email address indicated by you on the order form. For all other packages, we will try to find a safe secure place to leave your parcel as determined by the carrier delivering the package. In the event of a repeated issue with any particular address provided for you, we reserve the right to request an alternate address in order to fulfill your next order.

IF YOU CHOOSE THE PICK-UP IN STORE OPTION, YOU WILL BE REQUIRED TO SHOW A GOVERNMENT ISSUED IDENTIFICATION. In order to pick up orders placed through the Pick-up In Store option, you (or a third party designated by you) must provide the order number found on the electronic purchase receipt, together with the purchaser’s name and one form of government issued identification. If someone other than you picks up your order, we will record their name for confirming delivery purposes. You acknowledge and agree that the Pick-up In Store option is only available at participating locations, which locations are subject to change without notice. You further agree that the Website’s or Mobile App’s ordering functionality is intended for off-site use only and is not for use for placing an order from within a OUCH store.

8. UNABLE TO DELIVER

Please note that an order can be delivered to a neighbor, in case a delivery attempt is unsuccessful. Delivery to a neighbor address is upon judgment of the driver. Signature required orders which cannot be delivered will be returned to warehouse as stated above. The carrier will generally determine if the parcel can be left in a secure place at your delivery address. Your package may be returned to us if there is no safe place to leave the package at the point of delivery, where the package is safe from weather and is not visible to passersby. For lost or missing packages, we will provide you with the information of the carrier and tracking number associated with your order so that you may contact them directly to track your package.

This clause does not apply to e/virtual gift cards, whose delivery shall be governed by the Gift Card Terms pertaining to gifts cards which may be found at: Gift Card Conditions and the gift card conditions provided in clause 9 above.

9. RISK AND TITLE

The product(s) will be at your risk from the time of delivery. Ownership of the product(s) will only pass to you when we receive full payment of all sums due in respect of the products, including delivery charges, or upon delivery (as defined in Clause 9 above), whichever event occurs later in time.

10. PRICE AND PAYMENT

The price of the products shall be the one quoted from time to time on our Website or Mobile App, except where there is an error. While we take care to ensure that all prices quoted on our Website or Mobile App are accurate, errors may occur. If we discover an error in the price of any product(s) you have ordered, we will inform you as soon as possible and give you the option of reconfirming the order at the correct price or cancelling it. If we are unable to contact you, the order will be treated as cancelled and if you have already paid for the product(s) you will receive a full refund.

We are under no obligation to sell the product(s) to you at the incorrect (lower) price (even after we have sent you a Shipment Confirmation) if the pricing error is obvious and unmistakable and could have reasonably been recognized by you as such. All prices are exclusive of shipping charges and sales tax (if applicable). The total cost of the order is the price of the product(s) ordered plus the delivery charge and sales tax (if applicable). Prices may change at any time.

 

Sales tax is charged (if applicable) according to the shipping address of your order as required by applicable law.

Once you have finished shopping on the Website, all the products you wish to purchase are added to your basket. Your next step will be to go through the checkout process and make payment.

Payment for orders will be made to OUCH NIG, Inc. The amount of the purchase will not be charged to your card until your order has been shipped to the delivery address. By clicking on the “Finalize Order” button, you are confirming that the credit card is yours or that you are the owner of the gift card or of the merchandise credit card. Cards are subject to validation checks and authorization by your card issuer. If we do not receive the required authorization, we will not be liable for any delay or non-delivery.

If payment is made via PayPal or gift card or merchandise credit card issued by OUCH NIG Inc., the amount will be charged upon confirmation of your order.

11. RETURNS AND EXCHANGE POLICY

Online Purchases:

Subject to the conditions set forth below, Ouch will gladly accept returns or exchanges of new, unworn, unwashed, and unaltered merchandise with all internal garment tags intact with your original receipt within thirty (30) days of the date of the Shipment Confirmation, unless a longer period of time is specified in writing at the time of purchase, Order Confirmation, or Shipment Confirmation. Refunds are made in the form of original payment. If the original form of payment is not available, please contact Customer Service.

If you wish to receive a refund you can make a return in person at any OUCH Nigerian store in the that contains the product section to which the product you want to return belongs, drop off location of the courier shown on our prepaid label, or by giving the products to the Courier arranged by us within thirty (30) days of the date of the Shipment Confirmation, unless a longer period of time is specified in writing at the time of purchase, Order Confirmation, or Shipment Confirmation. None of these return options will involve any additional cost to you. You should send the product in the same package received by following the directions contained in the section regarding “RETURNS” within the Buying Guide posted to our Website. However, you will be responsible for the cost of returning the product to us if you do not utilize one of the (3) three free return options offered by us. If you have any doubts you can contact us through our “Contact Us” webpage or at the telephone number +234.

If you wish to exchange a product, provided you have the receipt, you may do so in person, at any OUCH store in the Nigeria that has the product section to which the product you want to exchange belongs within thirty (30) days of the date of the Shipment Confirmation, unless a longer period of time is specified in writing at the time of purchase, Order Confirmation, or Shipment Confirmation. You may also request an exchange online if you made the purchase as a Registered User. You will have fourteen (14) from the date you request the exchange to return the original item(s). If you do not return the original item within

14 days, you will be charged the amount using the original payment method. Exchanges of online purchases using PayPal are not available at this time.

Terms and Conditions for Gift cards and store credits are available at Ouch stores and www.ouch.com/nig. Store credits may not be converted to cash at any point, except as required by applicable law. PayPal orders are not exchangeable online. For further information on returns and exchanges for online purchases please visit www.ouch.com/ng.

 

Please allow 1-2 billing cycles for the refund to appear on your bank statement (due to different banking institution policies). Merchandise (including Gift Cards and merchandise credit cards) purchased in Puerto Rico or outside of the US are not returnable or exchangeable in the US. Price adjustments will not be honored for any marked-down merchandise. Undergarments & swimwear are returnable or exchangeable, as long as they remain in the original packaging and the hygiene sticker remains attached. Accessories and perfumes must be in their original condition and original packaging. Subject to applicable law, on sale merchandise is sold “as-is”.

 

Ouch reserves the right to refuse returns of any merchandise that does not meet the above return requirements in ouch’s sole discretion.

For any questions or more information go to our Buying Guide at www.ouch.com/us. This policy is in addition to and does not affect consumers’ rights under any applicable law.

Please include with the product being returned all original boxes, instructions, documents, and wrappings. After reviewing the product, we will let you know whether or not you have a right to a refund based on our Return and Exchange policy conditions. We will process your refund as soon as possible and in any case; within thirty (30) days of the date the returned goods have been received by us. We will refund any money received from you using the same method used to make payment if the card is available. If not, subject to any legal requirements, we will issue you merchandise credit. Merchandise credits do not expire.

 

Monogrammed or customized products are not returnable or exchangeable.

Return of gift cards shall be governed by the Gift Card Terms pertaining to gift cards which may be found at: Gift Card Conditions.

 

In-Store Purchases:

Subject to the conditions set forth below, Ouch will gladly accept returns or exchanges of new, unworn, unwashed, and unaltered merchandise with all internal garment tags intact with your original receipt within thirty (30) days of the original purchase date. Refunds are made in the form of original payment. If the original form of payment is not available, a customer making a return within thirty (30) days of purchase will be provided with a merchandise credit. Merchandise returned after thirty (30) days with original receipt is refunded in the form of a

merchandise credit valid at Ouch retail stores in the Nig (excl. Puerto Rico) or www.ouch.com/ng only. We do not accept returns without a receipt, however, as gesture of good will, we will allow an even exchange (of the same item) for a different size or color, if available for sale, at the store only. A written copy of this policy is available upon request.

For purchases by credit or debit cards, please allow 1-2 billing cycles for the refund to appear on your statement (due to different banking institution policies). Merchandise (including Gift Cards and merchandise credit cards) purchased in Puerto Rico or outside of the US are not returnable or exchangeable in the US. Price adjustments will not be honored for any marked-down merchandise. Undergarments & swimwear are returnable or exchangeable, as long as they remain in the original packaging and the hygiene sticker remains attached. Accessories and perfumes must be in their original condition and original packaging. Subject to applicable law, on sale merchandise is sold “as-is”.

Terms and Conditions for Gift cards and store credits are available at ouch stores and www.ouch.com/ng. Store credits may not be converted to cash at any point, except as required by applicable law. PayPal orders are not exchangeable online. For further information on returns and Exchanges for online purchases please visit www.ouch.com/ng.

 

Ouch reserves the right to refuse returns of any merchandise that does not meet the above return requirements in ouch’s sole discretion.

For any questions or more information go to our Buying Guide at www.ouch.com/ng. This policy is in addition to and does not affect consumers’ rights under any applicable law.

Returns of defective products

In circumstances where you consider that the product does not conform to your order, you should promptly contact us by telephone at +234 or via chat with details of the product and a description of the defect.

You may return the product to us in person at any OUCH store in  Nigeria that contains the product section to which the product you want to return belongs, via the drop off location of the courier shown on our pre-paid return label, or by giving the products to the Courier arranged by us. Upon receipt of the returned product, we will fully examine it and notify you of your right to a replacement or refund (if any) via email within a reasonable period of time. We aim to process the refund or replacement as soon as possible and, in any case, within thirty (30) days of the date we confirmed to you via email that you are entitled to a refund or replacement for the non-conforming product.

If any defect exists, defective products will be refunded in full, including a refund of the delivery charges (if any) and any reasonable costs incurred by you in returning the product. We will always refund any money using the method used to make payment provided the same is available. If not we will issue merchandise credit.

12. LIABILITY AND DISCLAIMERS

We publish information on the Site and Mobile App as a convenience to you. While we attempt to provide accurate and timely information, there may be inadvertent technical or factual inaccuracies and typographical errors. We reserve the right to make corrections and changes to the Site or Mobile App at any time without notice. The products described in the Site or Mobile App may not be available in your region. We do not claim that the information in the Site or Mobile App is appropriate to your jurisdiction or that the products described in the Site or Mobile App will be available for purchase in all jurisdictions.

YOU ASSUME ALL RESPONSIBILITY AND RISK WITH RESPECT TO YOUR USE OF THE SITE OR MOBILE APP, WHICH IS PROVIDED “AS IS.” WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND ENDORSEMENTS OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH REGARD TO INFORMATION ACCESSED FROM OR VIA THE SITE OR MOBILE APP, INCLUDING WITHOUT LIMITATION, ALL CONTENT AND MATERIALS, FUNCTIONS AND SERVICES PROVIDED ON THE SITE OR MOBILE APP, WHICH ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, UNINTERRUPTED ACCESS, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SITE OR MOBILE APP, OR THEIR FUNCTIONS OR CONTENT AND MATERIALS OR THE SERVICES MADE AVAILABLE THEREBY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITE OR MOBILE APP WILL MEET USERS’ EXPECTATIONS OR REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, OR MATERIALS WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE OR MOBILE APP SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE OR MOBILE APP, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE OR MOBILE APP. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR MOBILE APP IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

 

We make no warranties of any kind regarding any non-OUCH sites or mobile apps to which you may be directed or hyperlinked from the Site or Mobile App. Hyperlinks are included solely for your convenience, and we make no representations or warranties with regard to the accuracy, availability, suitability or safety of information provided in such non-OUCH sites or mobile apps. We do not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on the Site or Mobile App.

IN NO EVENT SHALL OUCH, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,

EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) (COLLECTIVELY, “DAMAGES”) ARISING FROM OR IN ANY WAY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF THE SITE OR MOBILE APP, OR THE CONTENT AND MATERIALS OR FUNCTIONALITY ON OR ACCESSED THROUGH THE SITE OR MOBILE APP, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES OR ANY OTHER TYPE OF DAMAGE, TANGIBLE OR INTANGIBLE IN NATURE, EVEN IF OUCH OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Due to the open nature of the Website and/or Mobile App, and the potential for errors in the storage and transmission of digital information, we do not warrant the accuracy and security of information transmitted to or obtained from the Website or Mobile App unless otherwise expressly set out on the Website or Mobile App.

13. INTELLECTUAL PROPERTY

The Site and Mobile App, including all of its information and contents, such as text, data, wallpaper, icons, characters, artwork, images, photographs, graphics, music, sound, messages, graphics, software and the HTML used to generate the pages (collectively, “Materials”), is OUCH property or that of our suppliers or licensors and is protected by patent, trademark and/or copyright under United States and/or foreign laws. Except as otherwise provided on the Site, the Mobile App, or in these Terms, you may not use, download, upload, copy, print, display, perform, reproduce, publish, modify, delete, add to, license, post, transmit, or distribute any Materials from the Site or Mobile App in whole or in part, for any public or commercial purpose without the specific prior written permission of OUCH. We grant you a personal, limited, non-exclusive, nontransferable license to access the Site and/or Mobile App and to use the information and services contained on the Site and/or Mobile App. We reserve the right, for any reason or for no reason, in our sole discretion and without notice to you, to revise the products and services described on the Site or Mobile App and to terminate, change, suspend or discontinue any aspect of the Site or Mobile App, including, but not limited to, the Materials on the Site or Mobile App as well as features and/or hours of availability of the Site or Mobile App, and we will not be liable to you or to any third party for doing so. Subject to Clause 27, we may also impose rules for and limits on use of the Site or Mobile App or restrict your access to part, or all, of the Site or Mobile App without notice or penalty. We have the right to change these rules and/or limitations at any time, in our sole discretion.

 

As between you and OUCH, (or any other company whose marks appear on the Site or Mobile App), OUCH (or the respective company) is the owner and/or authorized user of any registered or unregistered trademark, trade name and/or service mark appearing on the Site or Mobile App, and is the copyright owner or

licensee of the Materials on the Site or Mobile App, unless otherwise indicated. The OUCH logos, designs, titles, phrases and product names and the copyrights, trademarks, service marks, trade dress and/or other intellectual property in such materials (collectively, “OUCH Intellectual Property”) are owned by OUCH and may be registered in the United States and internationally. You agree not to display or use the OUCH Intellectual Property in any manner without OUCH’s prior permission. Nothing on the Site or Mobile App should be construed to grant any license or right to use any OUCH Intellectual Property without the prior written consent of OUCH.

 

Except as otherwise provided herein, use of the Site or Mobile App does not grant you a license to any Materials or features you may access on the Site or Mobile App and you may not modify, rent, lease, loan, sell, distribute or create derivative works of such Materials, features or materials, in whole or in part. Any commercial use of the Site or Mobile App is strictly prohibited, except as allowed herein or otherwise approved by us. You may not download or save a copy of any of the Materials or screens for any purpose except as otherwise provided by OUCH. If you make use of the Site or Mobile App, other than as provided herein, in doing so you may violate copyright and other laws of the United States, Ireland, and/or other countries, as well as applicable state laws, and you may be subject to liability for such unauthorized use. The information on the Site or Mobile App including, without limitation, all site design, text, graphics, interfaces, and the selection and arrangements is protected by law including, but not limited to, copyright law. This does not prevent you from using the Website or Mobile App to the extent necessary to make a copy of any order.

 

OUCH makes no claim that the Site or Mobile App may be lawfully viewed or that content may be downloaded outside of the United States. Access to the content may not be legal by certain persons or in certain countries. If you access the Site or Mobile App from outside the United States, you do so at your own risk and you are responsible for compliance with the laws of the jurisdiction.

14. COPYRIGHT AND/OR TRADEMARK INFRINGEMENT

If you believe a work on the Site or Mobile App constitutes infringement of your copyright, trademark or other intellectual property rights please provide our Designated Agent with a written communication containing the following information:

1. Evidence of your authorization to act on behalf of the owner of the copyrighted work or Trademark;

2. A description of the copyrighted work or trademark that you claim has been infringed;

3. Description of where the alleged infringing material is located on the Site or Mobile App, including the permalink where the material is located;

4. Your address, telephone number, and email address;

5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner or trademark owner, its agent, or the law;

6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or trademark owner or authorized to act on the owner’s behalf; and

7. Your physical or electronic signature.

 

OUCH’s Designated Agent for notice of claims of copyright infringement and trademark infringement can be reached at [email protected] .com

 

15. INDEMNITY

You agree to indemnify and hold OUCH, its directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, in any way arising from, related to or in connection with your (including your dependents’ or agents’) violation of these Terms or the posting or transmission of any materials on or through the Site or Mobile App by you, including, but not limited to, any third party claim that any information or materials you provide infringes any third party proprietary right.

16. WRITTEN COMMUNICATIONS

When using our Site or Mobile App, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on our Website or Mobile App, push notifications or messages. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing.

17. REGISTRATION, PASSWORDS, AND SECURITY

To access some of our services you will have to complete an online registration form. You agree that all information which you submit (“Registration Information”) is true and complete and that you will update your Registration Information to keep this information true and complete.

Upon registering, you will create a password. You are solely responsible for any use of or action taken under your password on the Site or Mobile App. Your password may be used only to review information regarding potential and completed transactions, purchase or cancel purchases of products, change your preferences, post content and otherwise access and use the Site, the Mobile App, and services on the Site or Mobile App in accordance with these Terms. You are solely responsible for maintaining the confidentiality and security of your password, and you hereby agree not to disclose your password to any third party (other than third parties authorized by you to use your account). You accept full

responsibility for all transactions and other activities placed or conducted through your account and agree to and hereby release OUCH from any and all liability concerning such transactions or activity. You agree to notify OUCH immediately of any actual or suspected loss, theft or unauthorized use of your account or password. OUCH has no obligation to inquire as to the authority or propriety of any use of or action taken under your password and will not be responsible for any loss to you arising from any Such use or action or from your failure to comply with the above. OUCH will take reasonable security precautions when using the Internet, telephone or other means to transport data or other communications, but expressly disclaims any and all liability for the accessing of any such data or communications by unauthorized persons or entities.

18. POSTED CONTENT AND SUBMISSIONS

As part of your use of the Site or Mobile App and services offered on the Site or Mobile App, you may upload, post, distribute or disseminate (collectively, “post”) content and material (including but not limited to, photographs, images you have taken, captions and comments), or you may send or email us material (including but not limited to, photographs you have taken, articles you have written, captions, and comments) which we, at our discretion, may allow you to post (collectively, the “Posted Content”) on the Site or Mobile App. You hereby grant OUCH a right (including any moral rights) and worldwide license to use the Posted Content on the Site or Mobile App and to promote and advertise the Site or Mobile App and OUCH in any way.

You also warrant that if you are not the holder of any such rights, the holder of such rights has completely and effectively waived all such rights and validly and irrevocably granted you the right to grant the license stated above. You acknowledge and agree that you are solely responsible for the form, content and accuracy of any Posted Content. You agree that you will not post any false, inaccurate material or delete or revise any material that was not posted by you. You are responsible for your own postings and are responsible for the consequences of your postings. You agree not to do any of the following:

 

1. Post any material that is copyrighted or trademarked unless you own the copyright or trademark or have the owner’s permission (including requisite consents and releases) to post it;

2. Post any material that reveals a trade secret, unless you own the trade secret or have the owner’s permission to post it;

3. Post any material that infringes on any intellectual property right of another or on the privacy or publicity rights of another;

4. Post any material that is unlawful, obscene, pornographic, sexual, indecent, defamatory, threatening, harassing, abusive or hateful to another user or to any other person or entity;

5. Post any chain letter or pyramid scheme; or

  1. post any material that contains a virus, trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information.

 

OUCH does not represent or guarantee the truthfulness, accuracy or reliability of any Posted Content or endorse any opinions expressed by a user. You acknowledge that any reliance on Posted Content by other users will be at your own risk. OUCH does not confirm that each user is who he or she claims to be.

 

OUCH exercises a great effort to protect Posted Content from being misused. However, if misuse has occurred OUCH is in no way liable for such misuse. Because OUCH is not involved in user-to-user dealings and does not control the behavior of participants on the Site or Mobile App, in the event that you have a dispute with one or more users, you release OUCH from any claims, demands and damages (actual and consequential, direct and indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. OUCH acts as a passive conduit for Posted Content and has no obligation to screen or monitor Posted Content.

 

If OUCH becomes aware of any Posted Content that allegedly may not conform to these Terms, OUCH may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. OUCH has no liability or responsibility to users for performance or nonperformance of such activities. You may find some Posted Content to be offensive, indecent, harmful, inaccurate, objectionable, mislabeled or deceptively labeled. OUCH expects that you will use caution and common sense when using the Site and Services.

 

OUCH HAS THE ABSOLUTE RIGHT TO REMOVE AND/OR DELETE WITHOUT NOTICE ANY POSTED CONTENT THAT IT DEEMS OBJECTIONABLE. YOU CONSENT TO SUCH REMOVAL AND/OR DELETION AND WAIVE ANY CLAIM AGAINST OUCH FOR SUCH REMOVAL AND/OR DELETION.

OUCH IS NOT RESPONSIBLE OR LIABLE FOR FAILURE TO STORE POSTED CONTENT OR OTHER MATERIALS YOU TRANSMIT THROUGH THE SITE OR MOBILE APP. YOU SHOULD TAKE MEASURES TO PRESERVE COPIES OF ANY DATA, MATERIAL, CONTENT OR INFORMATION YOU POST ON THE SITE OR MOBILE APP.

We are pleased to hear from our visitors and welcome your comments. Because of the large number of ideas and works that OUCH has already developed, or that have been suggested to us by third parties, the possibility exists that any idea, suggestion or submission that you may make through the Site or Mobile App is similar to information, ideas or suggestions already known to us. By disclosing any information, idea, suggestion or other material through the Site or Mobile App, you agree that (a) no confidential relationship is established by virtue of such

submission and that the material is not submitted in confidence and (b) no obligation of any kind is assumed by, nor may be implied against, OUCH by virtue of such submission. Moreover, no liability shall result from the use of such information, ideas or suggestions by OUCH.

19 . NOTICES

All notices given by you to us should be given to us preferably via the avenues of contact provided on our “Contact Us” webpage. Subject to and as otherwise specified in Clause 18 above, we may give notice to you via either the email, message, push notification (if consent has been provided) or postal address you provide to us when placing an order.

Notice will be deemed received and properly served immediately when posted on our Website or Mobile App, 24 hours after an email is sent, or three days after the date of posting of any letter mailed. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email that such email was sent to the specified email address of the addressee.

20. BINDING NATURE; ASSIGNMENT

These Terms, the Gift Card Terms, and our Privacy Policy are binding on you and us and on our respective heirs, successors and assigns. You may not transfer, assign, charge or otherwise dispose of these Terms, the Gift Card Terms, or our Privacy Policy, or any of your rights or obligations arising under it, without our prior written consent. We may transfer, assign, charge, sub-contract or otherwise dispose of these Terms, the Gift Card Terms, and our Privacy Policy, or any of our rights or obligations arising under them, at any time.

21. EVENTS OUTSIDE OUR CONTROL

We will not be liable or responsible for any failure to perform, or delay in performance of any of our obligations under an order you have placed that is caused by events outside our control (a “Force Majeure Event”). A Force Majeure Event shall include any act, event, non- happening, omission or accident beyond our reasonable control and shall include in particular (without limitation) the following:

1 . Strikes, lock-outs or other industrial action.

2 . Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war.

3 . Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster.

4 . Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

5 . Impossibility of the use of public or private telecommunications networks.

6 . The acts, decrees, legislation, regulations or restrictions of any government.

7 . Any shipping, postal or other relevant transport strike,

failure or accidents.    Our performance under any order you have placed is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavors to bring the Force Majeure Event to a close or to find a solution by which our obligations may be performed despite the Force Majeure Event.

22.WAIVER                                                                                                                 No failure of OUCH to enforce any of its rights or remedies under these Terms or the Gift Card Terms will act as a waiver of such rights and remedies. A waiver by us of any default shall not constitute a waiver of any subsequent default. No waiver by us of any of these Terms or Gift Card Terms shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with the provisions of the clause on Notices (Clause21)above.

23 . SEVERABILITY                                                                                                   If any of these Terms or any provisions of an order are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

24. ENTIRE AGREEMENT                                                    

These Terms and any document expressly referred to in them represent the entire agreement between you and us in relation to the subject matter of these Terms and supersede any prior agreement, understanding or arrangement between you and us, whether oral or in writing. Both you and us acknowledge that, in entering into these Terms, neither you nor us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between you and us prior to such Terms, except as expressly stated in these Terms.

25. OURRIGHT TO MODIFY THESE TERMS                                                We have the right to revise and amend these Terms at any time. Your use of the Site or Mobile App after we post changes to these Terms constitutes your agreement to those changes prospectively from Updates.