MUNCHKIN, INC.’s TERMS AND CONDITIONS OF WEB SITE USE
Effective Date: November 14, 2013
The Web Site (defined below) is provided by Munchkin, Inc., and its subsidiaries, including, without limitation, Lindam Limited and Munchkin Baby Canada Ltd. (collectively, “Munchkin,” "we," "our," or "us"). These "Terms and Conditions of Web Site Use" (this "User Agreement") govern your use of the Web Site, regardless of how you access or use it. Each time you use the Web site, this User Agreement applies to your use. Munchkin is not responsible for notifying you of changes to the website and you should check the Web Site frequently to be aware of these changes By "Web Site," we mean the Internet domain address within which this User Agreement is posted and all features, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to this User Agreement.
It is important that if you want to use this Web Site that you carefully read this User Agreement since it is a written contract between you and Munchkin. Every time you use or access the Web Site you are agreeing to the terms and conditions in this User Agreement and any additional terms. If you are do not agree to all of the terms of this User Agreement and the additional terms, please do not use this Web Site.
1. Web Site Ownership and Content
The Web Site contains materials and other items about Munchkin’s products and services including, but not limited to, text, images, files, scripts, designs, photographs, videos, audio clips, graphics, button icons, pictures, advertising copy, URLs, technology, software, interactive features, and the overall arrangement or “look and feel” of such materials including copyrightable material, as well as trademarks, logos, and service marks that belong to either Munchkin, its licensors, licensees or other third parties (collectively the “Content”). The Web Site and the Content are owned or controlled by Munchkin and certain other third parties, and as such all right, title, interest in and to the Content and the Web site is the property of Munchkin or certain other third parties and is protected by United States and International copyright, trademark, trade dress, patent or other intellectual property rights and laws to the fullest extent possible. Munchkin is the owner of the copyright in the Content on the Web Site. By using the Web Site, you will not obtain any ownership or intellectual property or other interest in any item or content on the Web Site. In exchange for your agreement and strict compliance with the User Agreement and any additional terms, Munchkin grants you a limited, non-exclusive, non-transferrable, non-assignable, revocable license to access, display, view, and/or use the Content on the Web Site for your own personal, non-commercial use only. You agree that Munchkin may immediately and, without any notice to you, suspend or terminate the availability of the Web Site or its Content without any liability to you. You further agree that any unauthorized use of any Content of the Web Site for any purpose is strictly prohibited.
2. Ownership of Content You Submit
By using the Web Site and posting, uploading, publishing, distributing, or transmitting information such as pictures, reviews, messages, content, or other personal information on the Web Site or other Munchkin sponsored forums, blogs, social networking sites, or other communities, you grant Munchkin a perpetual, unrestricted, unconditional, unlimited, irrevocable, worldwide, cost-free right and license to use, copy, redistribute, re-sell, or transmit any portion of your “User Generated Content.” You agree to waive, unconditionally and perpetually, any rights to such User Generated Content, except as prohibited by law. You further represent and warrant that you are the age of majority in the state in which you reside or are the parent or legal guardian and consent to the uploading, publishing, distributing or transmitting of such User Generated Content. You further represent and warrant that you are the sole author and owner of such content and that to the best of your knowledge such User Generated Content does not infringe on the rights of any other third parties or would cause any harm to any other third parties. For example, you should not have User Generated Content that includes pictures or videos of family or friends where you do not have their permission to post such photos. In addition, you give Munchkin the sole and exclusive right to remove, alter, or change the User Generated Content and to bring any legal actions regarding such User Generated Content on your behalf. By using this Web Site, you agree that you will not obtain any ownership or intellectual property or other interest in it or any of the User Generated Content. You agree to respect the thoughts, opinions, and rights of others and that your User Generated Content does not threaten, abuse, or harm others, and does not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit or have political implications or be used for commercial gain. You give Munchkin the sole right to suspend, terminate, limit, or remove your right to use the Web Site or participate in any User Generated Content.
3. Consumer Satisfaction
It is very important to Munchkin that our consumers receive the highest quality consumer service. As such, if you have any questions, thoughts, ideas, or concerns, please feel free to contact us at: CServ@Munchkin.com
4. Permitted Activities
You should be aware that you may only use the Content on the Web Site in conjunction with permitted activities and you cannot use the Web Site or its Content in any offline environment or on any other Web Site. You are not allowed to use the Web Site or its Content for any commercial, political, obscene, or inappropriate purpose.
5. Mobile or Wireless Features
Munchkin’s Web Site may have certain features and/or services that are available to you via your mobile or wireless Internet Device. These features and services may include the ability to access the Web Site’s features and upload content to the Web Site, receive messages from the Web Site, and download applications to your mobile or wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your telephone service or carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues. By using this Web Site, under this User Agreement, you agree that for the Wireless Features for which you are registered, we can send you communications to your mobile or wireless Internet Device, unless you opt-out in accordance with our procedures. You also agree that we can collect information about your use of the Wireless Features.
6. Dispute Resolution
You agree that under this User Agreement there is a “written agreement to arbitrate” any disputes under the Federal Arbitration Act. If any disputes arise under the Web Site, the Content, your User Generated Content or terms under this User Agreement, you agree to send Munchkin a written notice of such dispute to: Munchkin, Inc., 7835 Gloria Avenue, Van Nuys, CA 91406, USA, Attn: General Counsel. If you and Munchkin are not able to resolve such a dispute, then you agree that either you or Munchkin can submit the dispute to formal arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). You can obtain AAA procedures, rules, and fee information as follows:
In arbitration, as with a court, the arbitrator must honor the terms of this User Agreement (and any additional terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
These provisions do not apply to any legal action taken by Munchkin to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Web Site, any Content, your User Generated Content and/or Munchkin’s intellectual property rights, operations, and/or products or services.
You agree that there will be no Class Action matters and that disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party
Except to the extent that arbitration is required above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any dispute or may only be instituted solely and exclusively in the state or federal courts in Los Angeles County, California. Accordingly, you and Munchkin consent to the exclusive personal jurisdiction and venue of such courts for such matters.
7. Disclaimer of Representations and Warranties
Munchkin is providing the Web Site and its Content to you on an “as is” basis, without any warranty of any kind and Munchkin’s liability to you is very limited. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Munchkin was advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Web Site).
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF MUNCHKIN TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE AND YOUR RIGHTS UNDER THIS USER AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID MUNCHKIN IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.
Please note that some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
PLEASE NOTE THAT UNDER NO CIRCUMSTANCES WILL MUNCHKIN BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to your use of or inability to use Website, or the performance of the Website.
8. Waiver of Injunctive or Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEB SITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEB SITE, CONTENT, USER GENERATED CONTENT, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY MUNCHKIN.
9. General Provisions
- Updates to User Agreement. Munchkin reserves the sole and exclusive right to modify this User Agreement and any additional terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Web Site so that they are accessible via a link on the Web Site, and that your use of the Web Site after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. You also agree that you will review this User Agreement and any additional terms on a regular and frequent basis and that the Updated Terms will be effective as of the time that Munchkin posts them on the home page of the Web Site, or such later date as may be specified in them.
- Applicable Law. This User Agreement and any additional terms will be governed by and construed in accordance with, and any dispute will be resolved in accordance with the laws of the State of California, without regard to its conflicts of law provisions.
- Jurisdiction. If any disputes arise out of this User Agreement or the Updated Terms, you agree to submit to the sole and exclusive jurisdiction and venue of the courts of the State of California located in Los Angeles County and waive any right to move to dismiss or transfer any such action brought in any such court on the basis of any objection to personal jurisdiction or venue. You further authorize and accept service of process sufficient for personal jurisdiction in any action against you as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to the address for the giving of notice as set forth in this User Agreement or listed on the Web Site.
- Indemnity. You agree to, and you hereby, defend, indemnify, and hold Munchkin and its subsidiaries, officers, directors, employees, shareholders, and affiliates harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Munchkin party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your User Generated Content; (ii) your use of the Web Site and your activities in connection with the Web Site; (iii) your breach or anticipatory breach of this User Agreement or any additional terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with your use of the Web Site; (v) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) Munchkin’s use of the information that you submit to us (including your User Generated Content); (viii) your purported “ownership” of any usage subscriptions or virtual items; and (ix) the increase or decrease in “value” or loss of usage subscriptions or virtual items if Munchkin deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Munchkin in the defense of any Claim and Losses. Notwithstanding the foregoing, Munchkin retains the sole and exclusive right to settle, compromise, and pay any and all Claims and Losses. Munchkin further reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Munchkin.
- Severability; Interpretation. If any provision of this User Agreement, or any additional terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from this User Agreement or the additional terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this User Agreement or the additional terms (which will remain in full force and effect).
- Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically through that same method.
- Assignment. Munchkin reserves the sole and exclusive right to assign its rights and obligations under this User Agreement and any additional terms, in whole or in part, to any party at any time without any notice. This User Agreement and any 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 Munchkin.
- No Waiver. Except as expressly set forth in this User Agreement or any additional terms, (i) no failure or delay by you or Munchkin in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of this User Agreement or any additional terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
Last updated: November 14, 2013
© 2013 Munchkin, Inc. All Rights Reserved.