ZAM E-Commerce Shop Terms of Sale
Last Updated: May 24, 2021
This ZAM Terms of Sale (these “Terms of Sale”) is a binding contract between you, an individual user (“you”) and ZAM Network, LLC (“ZAM,” “we,” or “us”) governing your use of the e-commerce shops and services made available by ZAM through our Websites located at zam.com.
By placing an order on the Wowhead Shop at https://wowheadshop.com or the Fanbyte Shop at https://store.fanbyte.com/ (each, a “Shop”, and collectively, the “Shops”), you agree that these Terms of Sale apply to your order and purchase of Merchandise (defined below) from the Shops. These Terms of Sale are governed by, and are hereby incorporated by reference into, the ZAM End User License Agreement and Terms of Service (“EULA”) located at https://corp.fanbyte.com/legal/terms. All capitalized terms used but not defined in these Terms of Sale will have the meaning given to them in the EULA. In the event of a conflict between these Terms of Sale and the EULA, with respect to the Shops and purchase of Merchandise, these Terms of Sale will govern.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS OF SALE YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND ZAM THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 15 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
1. Merchandise. Any order for merchandise or products placed through the Shops is an offer to purchase such merchandise or products (“Merchandise”) on the terms and conditions listed in these Terms of Sale. ZAM will be deemed to have accepted your offer upon the earlier of: (a) receipt by you of a confirmation from ZAM that specifically references your order; and (b) ZAM shipping you the Merchandise (“Acceptance”). ZAM reserves the right not to Accept your order at its discretion, including but not limited to, if ZAM is unable to obtain authorization for payment, shipping restrictions apply to a particular item, an item ordered is out of stock, an item is withdrawn due to quality concerns.
2. Payment. Before you are required to pay for Merchandise, you will have an opportunity to review and accept the amount that you will be charged. ZAM, through its designated third party payment processor, will charge the payment method you specify at the time of your order. You hereby authorize ZAM and its third party payment processor to charge all sums described in your order to that payment method. Pre-authorization of your credit card account may be sought prior to your purchase to verify that your credit card is valid and has the necessary funds or credit available to cover your purchase.
3. Price. All prices are in U.S. Dollars unless otherwise indicated and are non-refundable, except as set forth in our Return Policy in Section 7. The pricing for Merchandise sold on the Shops are as stated on the respective Shop page(s). ZAM may change the price for Merchandise at any time, whether as a result of fluctuations in commodity prices or otherwise, but no price change will apply to an order that you have already placed. ZAM, at its sole discretion, may make promotional offers with different features and different pricing to any of our customers. These promotional offers, unless made to you, will have no bearing whatsoever on the pricing for Merchandise made available to you via the Shops or any order(s) you have already placed.
ZAM tries to ensure pricing details on the Shops are accurate. If ZAM discovers an error in the pricing of Merchandise in your order, ZAM will let you know as soon as possible. ZAM is under no obligation to accept or otherwise fulfill an order for Merchandise that was advertised at an incorrect price, and reserves the right to reject those orders. If you have already paid for that Merchandise, ZAM will refund the full amount paid by you.
4. Shipping. Prices for Merchandise do not include shipping fees. Fees for shipping will be added to the cost of the Merchandise and charged to your payment method. Title and risk of loss to the Merchandise passes to you upon ZAM’s delivery of the Merchandise to the first common carrier. ZAM will ship the Merchandise to the address as indicated by you during the checkout process. We will package Merchandise in accordance with our standard practice.
We may make deliveries in installments, if necessary and applicable, with appropriate partial invoicing issued for each such installment. You acknowledge that all scheduled shipment dates are estimates only. ZAM will make reasonable efforts to meet the scheduled shipment dates, but in no event will ZAM be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
ZAM will accept orders only from billing and shipping addresses located within the United States, or such other countries as ZAM may in its sole discretion permit from time to time. Without limitation to Section 5 below, customers outside of the United States are solely responsible for any and all import duties, customs fees, and taxes that attach to any orders thereto.
5. Taxes. All prices are exclusive of sales, use, excise, customs, export, import, commodity, applicable local, city, and state taxes, and any other taxes. Such taxes or other charges incidental to the sale of Merchandise, are your responsibility and you agree to pay these taxes and fees. Depending on the order, the applicable tax may be added to your order and charged to your payment method. If ZAM is required to prepay any taxes on your behalf, you agree to promptly reimburse us for all such taxes paid.
6. Technical Assistance. Except as provided for in a separate signed agreement or as expressly stated in an order, we will not be obligated to provide technical advice, assistance, support or service in connection with any order or the Merchandise supplied thereunder.
7. Return Policy. ZAM will accept returns of Merchandise for up to no more than thirty (30) days after your receipt of that Merchandise. You must return the eligible Merchandise, at your sole expense, in new and unused condition, along with all parts and documentation that were initially included. This return policy does not affect any statutory rights that may apply, and which ZAM may exercise, with respect to your purchase. ZAM is not responsible for lost or damaged Merchandise in transit.
8. Merchandise Availability and Information. Merchandise availability on the Shops is not guaranteed and Merchandise may be low in stock or out of stock. We reserve the right to limit the quantities of any Merchandise that we offer. If Merchandise is not available by the time your order processes, ZAM will notify you of this via email or through the Shops. You can always verify availability by contacting ZAM through https://help.zam.com. You will receive a shipping confirmation email once your items have shipped. Please note that while ZAM tries to display the colors of Merchandise as accurately as possible, the actual colors of the Merchandise that you receive may be different from what you see on your screen. All descriptions of Merchandise or Merchandise pricing are subject to change at any time without notice to you, in our sole discretion. We reserve the right to discontinue any Merchandise at any time.
9. Product Changes. We may, at any time and without notice to you, change the Merchandise in any way that does not adversely affect the form, fit or function of the Merchandise in any material respect. If you at any time direct changes or cause ZAM to make changes to the Merchandise, or drawings or specifications of the Merchandise, or otherwise wish to change the scope of an order, we may terminate an order with respect to the Merchandise affected by such changes or reasonably change the time for performance or the price of the Merchandise to take into account your desired changes.
10. Delinquent Accounts. ZAM may charge, and you must pay, fees or charges that are incidental to any chargebacks or collection of unpaid amounts for Merchandise ordered by you, including collection fees.
11. Cancellation; Default. If you fail to pay in accordance with these Terms of Sale or any order, or fail to comply with any other provision of these Terms of Sale or any order, we may suspend or cancel any order as to unshipped portions of the Merchandise, and you will remain liable for any shipped Merchandise. You may cancel your order up to a reasonable amount of time after placing the order, to the extent such order has not been processed or the relevant Merchandise shipped, but in no event beyond three (3) days after placing such order.
12. Products from Third Party Sellers. The Shops may provide you with access to third party websites that offer Fanbyte or Wowhead (or other ZAM-related entity) apparel and accessories (collectively, “Third Party Sellers”), such as Design by Humans. ZAM does not have or maintain any control over Third Party Sellers, and is not and cannot be responsible for their content, operation, conduct, representations, warranties, covenants or duties under all circumstances. These Terms of Sales do not apply to your use of any Third Party Seller website or purchase from any Third Party Seller. Third Party Sellers may have their own pricing, terms of sale, terms of use, and privacy policies. You are solely responsible for reviewing and complying with any Third Party Seller terms, and you are solely responsible for all fees incurred by you with Third Party Sellers.
By linking or otherwise displaying information from or providing access to any Third Party Sellers, ZAM does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, products, or services provided by those Third Party Sellers. ZAM disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Sellers, and you hereby irrevocably waive any claim against ZAM with respect to any Third Party Sellers.
13. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SHOPS AND ALL MERCHANDISE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ZAM DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ZAM DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE ACCURACY OR RELIABILITY OF INFORMATION ON THE SHOPS. YOUR USE OF THE SHOPS IS AT YOUR OWN RISK.
14. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, (A) NEITHER ZAM NOR ANY OF ITS AFFILIATED OR RELATED ENTITIES OR ITS VENDORS WILL BE LIABLE TO ANY PERSON OR ENTITY FOR ANY INDIRECT LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHERWISE), INJURY, CLAIM, OR LIABILITY OF ANY KIND OR CHARACTER WHATSOEVER BASED UPON, ARISING OUT OF, OR RESULTING FROM THE SHOPS OR ANY MERCHANDISE AND (B) THE AGGREGATE LIABILITY OF ZAM OR ANY OF ITS AFFILIATED OR RELATED ENTITIES OR ITS VENDORS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY MERCHANDISE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT RECEIVED BY ZAM FOR THAT MERCHANDISE. NO ACTION MAY BE BROUGHT BY A PARTY FOR ANY BREACH OF THESE TERMS OF SALE MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
15. Dispute Resolution and Arbitration.
15.1 Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms of Sale or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and ZAM agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms of Sale, and that you and ZAM are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Sale.
15.2 Exceptions. As limited exceptions to Section 15.1 above: (a) we both may seek to resolve a Dispute in small claims court if it qualifies; and (b) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
15.3 Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms of Sale. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
15.4 Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration, we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
15.5 Injunctive and Declaratory Relief. Except as provided in Section 15.2 above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
15.6 Class Action Waiver. YOU AND ZAM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution and Arbitration section shall be null and void.
15.7 Severability. With the exception of any of the provisions in Section 15.6 (“Class Action Waiver”), if an arbitrator or court of competent jurisdiction decides that any part of these Terms of Sale is invalid or unenforceable, the other parts of these Terms of Sale will still apply.
16. Governing Law. These Terms of Sale, all orders, and any action related thereto, will be governed by the Federal Arbitration Act, federal arbitration law and the laws of the State of California without regard to conflict of laws provisions. Except as otherwise expressly set forth in Section 15 “Dispute Resolution and Arbitration” the exclusive jurisdiction for all Disputes (defined above) that you and ZAM are not required to arbitrate will be the state and federal courts located in the Los Angeles County, California and you and ZAM each waive any objection to jurisdiction and venue in such courts.
17. General. These Terms of Sale together with the Privacy Policy, is the entire and exclusive understanding and agreement between you and ZAM regarding your use of the Shops, and these Terms of Sale supersede and replace all prior and contemporaneous oral or written understandings or agreements between ZAM and you in this regard. You may not assign or transfer these Terms of Sale, in whole or in part, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms of Sale, without such consent, will be null. We may assign these Terms of Sale at any time without notice or consent. Subject to the foregoing, these Terms of Sale will bind and inure to the benefit of the parties, their successors and permitted assigns. Failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms of Sale, or any provision of these Terms of Sale, be a waiver of any subsequent breach or default or a waiver of the provision itself. Except as expressly set forth in these Terms of Sale, the exercise by either party of any of its remedies under these Terms of Sale will be without prejudice to its other remedies under these Terms of Sale or otherwise. If any part of these Terms of Sale is held to be invalid, illegal, or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the validity, legality, and enforceability of the remaining provisions shall remain in full force and effect. Any notices or other communications provided by ZAM under these Terms of Sale will be given: (a) via email; or (b) by posting to the ZAM website. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted. NOTHING IN THESE TERMS OF SALE WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.