Terms

1. Service Use

(a) Accounts. Certain features of the Service may require you to register an account or check out as a guest. When you register an account or check out as a guest, and each time you log-in to your account thereafter or make a purchase on the Service, you represent that you are at least the age of majority in the place where you reside and agree: (i) to these Terms, and any applicable Additional Terms, and consent to our collection, use and disclosure practices, and other activities as described in our Privacy Policy; (ii) you will provide and keep accurate, current, and complete information about yourself; (iii) you will not use a user name or e-mail address that violates the intellectual property or other right of any third party, or is offensive; (iv) you are solely responsible for all activities that occur under your account– whether or not you authorized the activity; (v) you will abide by the Service and Content (defined below) use restrictions set out in these Terms and any applicable Additional Terms; (vi) you are solely responsible for maintaining the confidentiality of any username password you provide and will not transfer or share your username or password with any third party; (vii) you will immediately notify us if your username or password is lost or stolen, of any unauthorized use of your account, or of any other breach of security, but accept that we are not responsible for thereafter stopping or preventing unauthorized use and you remain responsible for all activities that occur in connection with your account; and (viii) as permitted by applicable law, we will not be liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations. We reserve the right to reject, suspend or terminate accounts, user names and to account activities and transactions.

(b) Content. The Service contains: (i) materials and other items relating to Five Below and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Five Below; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of Five Below or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.

(c) Limited License. Subject to your strict compliance with these Terms and the Additional Terms, Five Below grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to download, display, view, use, play the Content on a personal computer, browser, laptop, tablet, mobile phone or other Internet-enabled device (each, a “Device”) and/or print one copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Five Below’s sole discretion, and without advance notice or liability.Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.

1. Mobile Application

Subject to your compliance with these Terms and the Additional Terms, Five Below grants you a limited non-exclusive, non-transferable license to use the Five Below mobile application and to access the Five Below Service via a single mobile device or computer that you own or control and to run such copy of Five Below mobile application solely for your own personal use. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Five Below mobile application in any way; (ii) modify or make derivative works based upon the Service or Five Below mobile application; (iii) create Internet “links” to the Content or “frame” or “mirror” the Five Below mobile application on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Five Below mobile application in order to (a) design or build a competitive product or service, (b) design or build a product using similar ideas, features, functions or graphics of the Service or Five Below mobile application, or (c) copy any ideas, features, functions or graphics of the Service or Five Below mobile application, or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Service or Five Below mobile application.

ii. App Store Sourced Application With respect to any application accessed through or downloaded from the Apple App Store (“App Store Sourced Application”), you agree that you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software) ; and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Five Below reserves all rights in and to the application not expressly granted to you under these Terms and the Additional Terms. You acknowledge and agree that (i) these Terms and the Additional Terms are valid between you and Five Below only, and not Apple, and (ii) Five Below, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application. In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will, where applicable, refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Five Below and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Five Below. You acknowledge that, as between Five Below and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You acknowledge that, in the event of any third party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Five Below and Apple, Five Below, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms and the Additional Terms. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries relating to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms and the Additional Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the rights under these Terms and the Additional Terms as related to your license of the App Store Sourced Application against you as a third party beneficiary thereof. Without limiting any other provisions of these Terms and the Additional Terms, you must comply with all applicable third party terms of agreement when using the App Store Sourced Application.

(d) Restrictions. You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.You further agree that you will not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, obscene, violent, threatening, harassing, abusive, or otherwise objectionable to Five Below; (iii) harvest any information from the Service; (iv) reverse engineer or modify the Service; (v) interfere with the proper operation of or any security measure used by the Service; (vi) infringe any intellectual property or other right of any third party; (vii) use the Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (viii) otherwise violate these Terms or any applicable Additional Terms.

(e) Children and Minors. You are only permitted to open an account or engage in transactions with us (e.g., purchase products) if you are of the age of majority in the place where you reside. Minors over the age of 13 years of age may browse all parts of the Service under the supervision of a parent or guardian who is deemed the user and responsible for their minor’s use of the Service. The Service is intended for a general audience and are not directed to children under thirteen (13) years of age, except that there may from time to time be specially “All Ages” or “Kids” designated portions of the Service that will be subject to different privacy practices. For more information, and for how parents can report a child under thirteen's (13) submission of personal information to us, see the “Children’s Privacy” section of our Privacy Policy.

(f) Availability and Termination. Five Below may immediately suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in Five Below’s sole discretion, and without advance notice or liability.Upon suspension or termination of your access to the Service, or upon notice from Five Below, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any applicable Additional Terms, which by their nature should survive your suspension or termination, including sections on Service Use (except for the limited license), Submissions, Copyright Infringement and DMCA Policy, Customer Support, Third-Parties, Service Features, Product Specifications and Risk of Loss, Dispute Resolution, Disclaimer of Representations and Warranties, Limitations of Our Liability, Waiver of Injunctive or Other Equitable Relief, Indemnification, Updates to Terms, and General Provisions,will survive.

(g) Reservation of All Rights. All rights not expressly granted to you are reserved by Five Below and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Content or the Service for any purpose is prohibited.

2. Product Specifications, Terms of Sale, Shipping, Risk of Loss and Returns.

(a) e-Gift cards. e-Gift cards made available through the Service are sold via a Third-Party Service (defined below) we link to (“e-Gift Card Vendor”) and its terms and conditions of use and sale and privacy policy will apply to the use of that site and transactions on it. Risk of loss and title transfers to the purchaser pursuant to the e-Gift Card Vendor and all issues relating to sale and delivery are between you and the e-Gift Card Vendor. In addition, the use of the e-Gift cards are subject to our Additional Terms made available at the point of purchase and as part of the e-Gift card collateral materials. e-Gift cards and plastic gift cards are redeemable at Five Below stores and fivebelow.com for merchandise only. Not redeemable for cash, except as required by law (e.g., in CA if balance less than $10). Card will not be replaced if lost or stolen. For card balance call 888-892-3813 or visit www.fivebelow.com. As permitted by applicable law, after 24 consecutive months of inactivity, a $2 per month service fee will be charged ($1 per month in California only on cards with a balance of $5 or less) until gift card is reused or the balance is exhausted. Gift Card purchases, use, ownership and redemption are also subject to Five Below’s terms of use as to Five Below, and, as to the e-Gift Card Vendor as the direct seller to you of the gift card, its terms and conditions.

(b) Product Specifications and Terms of Sale. Product specifications, pricing, availability and other content on the Service may not be complete, accurate, reliable, current, or error-free.In the event of any errors, Five Below has the right to refuse or cancel any orders in its sole discretion. In addition, an order placed by you is an offer to purchase that is only accepted by us when we proceed to confirm the order is correct and acceptable and ship the product. Any confirmation of your order prior to shipment is merely a confirmation of receipt of your offer to purchase and prior to shipment we can refuse an order.If we charged your account prior to acceptance or cancellation, we will issue a credit to your account in the amount of the charge. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. If a product you ordered is not available for shipment within thirty (30) days of your order, we will cancel your order and refund your purchase amount, unless we elect to make it available to you on “back order” terms and you accept those terms. Five Below strives to depict as accurately as possible the colors of the products shown on the Service; however, Five Below cannot and does not guarantee that your monitor’s display of any color or other visual representation of a product will be accurate. If a product you purchased from Five Below is not as described, your sole remedy is to return it in unused condition, complete and undamaged, in the original packaging, subject to our return policies. We reserve the right to limit quantities on orders placed by the same account, on orders placed by the same credit card, on particular products and promotions and on orders that use the same billing or shipping address. Other Additional Terms may apply.

(c) Shipping Policies and Risk of Loss. For information regarding our shipping policies and fees, please see our Shipping Information, as may be modified by applicable Additional Terms (e.g., special free shipping offers). All items purchased from the Service are made pursuant to a shipment contract.This means that the risk of loss and title for such items pass to you upon delivery to the carrier. Applicable Additional Terms may apply. (d) Returns & Exchanges. If you are not fully satisfied with your purchase, you may return it in accordance with our Return & Exchange Policy. For information regarding our return policies, please see our Return & Exchange Policy, as may be modified by applicable Additional Terms (e.g., terms for close outs and product-specific offer terms).

3. Submissions and User Content.

The Service may allow you to submit content to us via the Service, including feedback and comments to us regarding your use of the Service, including content that is posted on the Service for public display to other users and content that you may send us through communications with us (“Submissions”). You grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your Submissions and derivative works thereof, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You also irrevocably consent to our use and association of your name in connection with your Submissions and derivatives thereof. You agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Submissions. You agree that your Submissions will not: (i) promote any political or commercial purpose; (ii) defame, abuse, harass, stalk, or threaten others; (iii) use racially or ethnically offensive language; (iv) discuss or incite illegal activity; or (v) infringe any intellectual property or other right of any third party. Five Below may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your Submissions, and we may, in our sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of publicly posted Submissions without notice or any liability to you or any third party in connection with our operation of Submissions venues in an appropriate manner.Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. Such publicly posted Submissions submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such Submissions on the Service or elsewhere, except that California minors have certain rights to have certain content about them that they have themselves posted on the Service prospectively removed from public display. Click here for more information. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user.We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users.Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities. If you discover any content on the Service that violates these Terms, then you may report it to us here. For alleged infringements of intellectual property rights, see the next section immediately below.

4. Copyright Infringement and DMCA Policy

Five Below respects the intellectual property rights of others, and expects those who use the Service to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement in the U.S.A., please notify Five Below of your claim of infringement by sending the following written information to our Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(2), named below: • Your physical or electronic signature. • Identification of the copyrighted work you believe to have been infringed. • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material. • Adequate information by which we can contact you (including your name, postal address, telephone number and, if available, e-mail address). • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law. • A statement that the information in the written notice is accurate. • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. We will respond to notices of claimed copyright infringement in accordance with the DMCA. It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers. Our designated Copyright Agent to receive DMCA Notices is: Ronald J. Masciantonio Copyright Agent of Service Five Below, Inc. 701 Market Street, Suite 100 Philadelphia, PA 19106 Phone: 1-215-867-0538 Contact by e-mail here Return to Navigation

5. Customer Support

If you have any questions, please send an e-mail to us here. You acknowledge that the provision of support is at Five Below’s sole discretion and that we have no obligation to provide you with customer support of any kind.All legal notices to us must be mailed to: Five Below, Inc., 701 Market Street, Suite 100, Philadelphia, PA 19106 (Attention: Legal Counsel). When you communicate with us electronically, you consent to receive communications from us electronically.You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Return to Navigation

6. Third-Parties

(a) Third Party Content and Sites; Advertisements. The Service may contain, link to or may interact with third party content that is not owned, controlled or operated by Five Below (collectively, “Third-Party Services”). We may also host our content on Third-Party Services. Five Below neither endorses nor controls such Third-Party Services, and you acknowledge and agree that we are not responsible or liable for the information, content, products, or services on or available from such Third-Party Services, or for the results to be obtained from using them. If you choose to access any such Third-Party Services, you do so at your own risk. (b) Dealings with Third Parties. Any interactions, transactions, and other dealings that you have with any third parties found on or through the Service are solely between you and the third party. You hereby agree to indemnify Five Below against all claims, injury and/or damages including attorneys' fees that arise out of your use of any Third-Party Service.

7. Service Features.

(a) Wireless Features. The Service may offer features that are available to you via your wireless Device including the ability to access the Service’s features and upload content to the Service, and receive messages from the Service (collectively, “Wireless Features”).By using the Service, you agree that Five Below may collect information related to your use of the Wireless Features as described in our Privacy Policy, and may change, alter, or modify the settings or configurations on your Device in order to allow for or optimize your use of the Service.Data rates and other carrier fees may apply.

(b) E-mail Messages. You can opt out of receiving promotional e-mails from us by following the instructions as provided in e-mails to click on the unsubscribe link or by sending an e-mail to us here with the word UNSUBSCRIBE in the subject field of the e-mail.This will not affect subsequent subscriptions and if your opt out is limited to certain types of e-mails the opt out will be so limited. We reserve the right to send you e-mails relating to your account or use of the Service, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt out from receiving our promotional e-mail.

(c) Sweepstakes, Contest and Promotions. Any sweepstakes, contests or other promotions (any, a “Promotion”) that may be offered via the Site may be governed by a separate set of rules or other Additional Terms that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion, use of Submissions, and disclosures about how your personal information may be used. It is your responsibility to read these Additional Terms to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to the Promotion’s official rules and other applicable Additional Terms, and you agree to comply therewith and the decisions of the identified sponsor(s) and judge(s). Return to Navigation

8. Dispute Resolution

Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act.You and Five Below agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act.This Section can only be amended by mutual agreement. (a)Binding Arbitration. If any controversy, allegation, or claim relates in any way to your use of the Service, including without limitation our privacy practices related to the Service and offers made on and transactions and communications conducted through the Service(collectively, “Dispute”), then you agree the Dispute shall be submitted to confidential arbitration except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights or these Terms, you or we may seek injunctive or other appropriate relief in any state or federal court in the State of Pennsylvania, subject to Section 11. If an in-person arbitration hearing is required, it shall be held in the closest metropolitan statistical area (as defined by the U.S. Census Bureau) to your place of residence.You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction with respect to such arbitration terms, and in and to the state and federal courts of Pennsylvania. Arbitration under these Terms shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association; these Terms shall otherwise be construed in accordance with the internal laws of the State of Pennsylvania without regard to Pennsylvania’s choice of law principles.If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. The arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. (b) Class Action Waiver. DISPUTES WILL BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS AND WILL NOT BE JOINED OR CONSOLIDATED WITH ANY OTHER ARBITRATIONS OR OTHER PROCEEDINGS THAT INVOLVE ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY.YOU AND FIVE BELOW 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.

9. Disclaimer of Representations and Warranties.

AS PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED TO YOU ON AN “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. NEITHER FIVE BELOW NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “FIVE BELOW PARTIES”) MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE. THIS SECTION IS NOT INTENDED TO LIMIT WARRANTIES PROVIDED BY MANUFACTURERS OR EXPRESS REPRESENTATIONS OR CONTRARY STATEMENTS IN THE TERMS OR APPLICABLE ADDITIONAL TERMS OR LIABILITY FOR DIRECT DAMAGES FOR PERSONAL INJURY CAUSED BY A PHYSICAL PRODUCT MANUFACTURED, SOLD OR PROVIDED BY US.

10. Limitations of Our Liability.

AS PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE FIVE BELOW PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS OR (C) YOUR USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR FIVE BELOW HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. AS PERMITTED BY APPLICABLE LAW, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. THIS SECTION IS NOT INTENDED TO LIMIT WARRANTIES PROVIDED BY MANUFACTURERS OR EXPRESS REPRESENTATIONS OR CONTRARY STATEMENTS IN THE TERMS OR APPLICABLE ADDITIONAL TERMS OR LIABILITY FOR DIRECT DAMAGES FOR PERSONAL INJURY CAUSED BY A PHYSICAL PRODUCT MANUFACTURED, SOLD OR PROVIDED BY US.

11. Waiver of Injunctive or Other Equitable Relief

YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY FIVE BELOW OR A LICENSOR OF FIVE BELOW.

12. Indemnification

You agree to defend, indemnify and hold harmless Five Below from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your use of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; or (vi) any misrepresentation made by you. Five Below reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Five Below’s defense of any claim. You will not in any event settle any claim without the prior written consent of Five Below. THIS SECTION IS NOT INTENDED TO LIMIT WARRANTIES PROVIDED BY MANUFACTURERS OR EXPRESS REPRESENTATIONS OR CONTRARY STATEMENTS IN THE TERMS OR APPLICABLE ADDITIONAL TERMS OR LIABILITY FOR DIRECT DAMAGES FOR PERSONAL INJURY CAUSED BY A PHYSICAL PRODUCT MANUFACTURED, SOLD OR PROVIDED BY US.

13. Updates to Terms.

We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. Your continued use of the Service following the posting of revised Terms and any applicable Additional Terms shall indicate your acknowledgement of such changes and your agreement to be bound by the terms and conditions of such changes. If you object to any such changes, your sole recourse is to cease using the Service. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service (e.g., prior transactions) will continue to apply to such prior use and any specific term to which we previously committed to apply those terms (if applicable) (i.e., changes and additions are prospective only) unless mutually agreed.

14. General Provisions.

(a) Consent or Approval. No Five Below consent or approval may be deemed to have been granted by Five Below without being in writing and signed by an officer of Five Below.

(b) Severability; Interpretation; Assignment. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the applicable Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Five Below may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice.These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Five Below.

(c) Complete Agreement; No Waiver. These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service.Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Five Below in exercising any of rights, powers, or remedies will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

(d) International Issues. Five Below controls and operates the Service from the U.S.A., and Five Below makes no representation that the Service is appropriate or available for use beyond the U.S.A.You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service.Software related to or made available by the Service may be subject to export controls of the U.S.A, and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.

(e) Investigations; Cooperation with Law Enforcement. Five Below reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. As permitted by applicable law, Five Below may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.

(f) California Consumer Rights and Notices. California residents can obtain information on our privacy practices, including how we comply with the California Online Privacy Protection Act and the California Shine the Light Act in our Privacy Policy. Residents of California are entitled to the following specific consumer rights information: you may contact the Consumer Information Center of the Consumer Information Division of the Department of Consumer Affairs by mail at: 1625 North Market Boulevard, Suite N 112, Sacramento, California, 95834, or by telephone at 800-952-5210. Their website is located at: http://www.dca.ca.gov. Any California residents under the age of eighteen (18) who have registered to use the Service, and who have posted content or information on the Service, can request that such information be removed from the Service by contacting us here making such a request, stating that they personally posted such content or information and detailing where the content or information is posted. We will make reasonable good faith efforts to remove the post from prospective public view or anonymize it so the minor cannot be individually identified. This removal process cannot ensure complete or comprehensive removal. For instance, third-parties may have republished the post and archived copies of it may be stored by search engines and others that we do not control.

(g) Forward Looking Statements. Any forward-looking statements contained on the Web Site are intended to be made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. The words “believes,” “expects” and “anticipates” and other similar expressions which are predictions of or indicate future events and trends and which do not relate solely to historical matters identify forward-looking statements. Such forward-looking statements are subject to risk and uncertainties, which could cause actual results, performance, or achievements of Five Below to differ materially from anticipated future results, performance or achievements expressed or implied by such forward-looking statements. Users are cautioned not to place undue reliance on these forward-looking statements. Some of the risks and uncertainties which may cause the actual results to differ from those projected by such forward looking statements are discussed under the heading “Risk Factors” in our Annual Report on Form 10-K which may be accessed on the internet at www.sec.gov or through the Service. Many of these uncertainties and risks are difficult to predict and beyond management’s control. Forward-looking statements are not guarantees of future performance, results or events. Five Below assumes no obligation to update or supplement forward-looking statements that become untrue because of subsequent events.

Terms of Service

Effective Date: July 15, 2020.