Revised: April 7th, 2016
Revised: March 10, 2016
These Terms of Service (“Terms”) govern your use of this website (“Site”) and any of our mobile applications, application programming interfaces, products, and other services offered by us, including the CogniToys Dino toy (“Dino”) (collectively, the “Offerings”). Elemental Path, Inc. (“we” or “us”) provides the Site and Offerings. “You” refers to you as a user of the Site or Offerings.
BY USING THE SITE OR OFFERINGS, YOU ARE AGREEING TO THESE TERMS. PLEASE READ THEM CAREFULLY.
Although the Dino product is intended for kids 5 years old or older, you must be at least 13 years old to use the Site, our mobile applications, and other online offerings. If you are under the age of majority in your state of residence, a minor, your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Site and Offerings with permission from your parent or legal guardian.
Shipping: When you purchase an Offering (an “Order”), you will be required to pay applicable shipping and processing charges and fees (“Fees”). Fees are intended to compensate us for any relevant costs of processing your Order; costs of handling and packing any products; and costs of delivering or providing the purchased Offerings to you.
Inaccuracy Disclaimer: From time to time, there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your Order). If you do not wish to continue with your Order after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your Order.
Order Warranties, Returns and Refunds: Each Order is subject to our Warranty, Return and Refund policies. When you purchase a Dino, the CogniToy Warranty and Return Policy will apply to your purchase. The CogniToy Warranty and Return Policy can be found here: Warranty Agreement.
Some of our Offerings have additional terms and conditions (“Additional Terms”). Where Additional Terms apply to an Offering, we will make them available for you to read through your use of that Offering. By using that Offering, you agree to the Additional Terms.
Acceptable Use of the Site and Offerings
You are responsible for your use of the Site and Offerings, and for any use of the Site or Offerings made using your account. You are responsible for the internet connection necessary to connect to and use the Site and Offerings.Our goal is to create a positive, personalized, and safe educational experience for you and your child. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us. When you use the Site or Offerings, you may not:
- violate any law or regulation;
- violate, infringe, or misappropriate other people’s legal rights;
- engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Offerings;
- transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;
- stalk, harass, or harm another individual
- impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;
- use any means to scrape or crawl any Web pages contained in the Site;
- attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Offerings;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Offerings; or
- advocate, encourage, or assist any third party in doing any of the foregoing.
The Site and some of our Offerings allow you or your child to upload, submit, store, send, or receive content and data (“User Content”). For example, when your child interacts with the Dino, your child can do things like create stories and make drawings, which will be uploaded and stored. You and your child retain ownership of any intellectual property rights that you hold in that User Content. In other words, you and your child own your personal data.
When you or your child upload, submit, store, send or receive User Content to or through the Site or the Offerings, you give us permission to reproduce and use your and your child’s User Content as follows: you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works of (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Offerings), publicly perform, publicly display, and distribute your or your child’s User Content. This license is for the limited purpose of operating, promoting, and improving the Site and Offerings, and to develop new Offerings. Our license to your and your child’s User Content is non-exclusive, meaning you and your child may use the User Content for your own purposes or let others use your or your child’s User Content for their purposes. This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your or your child’s User Content. We may exercise our rights under this license anywhere in the world. Lastly, this license is perpetual, meaning that our rights under this license continue even after you or your child stops using the Site and Offerings. In general, however, we will only need to use your or your child’s User Content for as long as you choose to store it with us using the Site or Offerings.
You promise that:
- you and your child own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and
- your and your child’s User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
Third Party Content
We use content from third parties to provide some features of our Offerings (“Third Party Content”). For example, when the Dino answers a question, we may pull answers to those questions from third parties like Wolfram Alpha and IBM Watson. We are not responsible or liable for such Third Party Content, and we make no guarantees as to the accuracy of such Third Party Content.
Other than User Content and Third Party Content, we own or license all right, title, and interest in and to (a) the Site and Offerings, including all software, text, media, and other content available on the Site and Offerings (“Our Content”); and (b) our trademarks, logos, and brand elements (“Marks”). The Site and Offerings, Our Content, and Marks are all protected under U.S. and international laws.
Copyright and Intellectual Property Policy
We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
- Your address, telephone number, and email address.
- A description of the copyrighted work that you claim has been infringed.
- A description of where the alleged infringing material is located.
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
- A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.
- For clarity, only copyright infringement notices should go to our Copyright Agent. You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid. If you believe the content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such content, you may submit a counter-notice to the address listed above containing the following information:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
Changes to the Site or Offerings
We enhance and update the Site and Offerings often. We may change or discontinue the Site or Offerings at any time, with or without notice to you.
We reserve the right to not provide the Site or Offerings to any person. We also reserve the right to terminate any user’s right to access the Site or Offerings at any time, in our discretion. If you violate any of these Terms,your permission to use the Site and Offerings automatically terminates.
Disclaimer and Limitations on Our Liability
YOU USE THE SITE AND OFFERINGS AT YOUR OWN RISK. THE SITE AND OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
IN PARTICULAR, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR OFFERINGS, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR OFFERINGS. OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR OFFERINGS; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR OFFERINGS; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR OFFERINGS BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR OFFERINGS.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR OFFERINGS IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL OUR COMPANY OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR RELATING TO THE SITE OR OFFERINGS, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, arising from or relating to, any actual or alleged breach of these Terms by you or anyone using your account. If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.
Arbitration Agreement & Waiver of Certain Rights
You and Elemental Path, Inc. agree that we will resolve any disputes between us through binding and final arbitration instead of through court proceedings. You and Elemental Path, Inc. hereby waive any right to a jury trial of any Claim (defined below). All controversies, claims, counterclaims, or other disputes arising between you and Elemental Path, Inc. relating to these Terms, the Site, or the Offerings (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Elemental Path, Inc. will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
This arbitration agreement does not preclude you or Elemental Path, Inc. from seeking action by federal, state, or local government agencies. You and Elemental Path, Inc. also have the right to bring qualifying claims in small claims court. In addition, you and Elemental Path, Inc. retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
Neither you nor Elemental Path, Inc. may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim. Claims may not be arbitrated on a class or representative basis. The arbitrator can decide only your and/or Elemental Path, Inc.’s individual Claims. The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect. No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement. Such a waiver shall not waive or affect any other portion of this Terms. This Section of the Terms will survive the termination of your relationship with Elemental Path, Inc.
THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR ELEMENTAL PATH, INC. WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.
Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.
These Terms will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws rules or provisions.
You agree that any action of whatever nature arising from or relating to these Terms, the Site, or Offerings will be filed only in the state or federal courts located in New York, New York. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.
The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.
We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.
Changes to these Terms
From time to time, we may change these Terms. If we change these Terms, we will give you notice by posting the revised Terms on the Site. Those changes will go into effect on the Revision Date shown in the revised Terms. By continuing to use the Site or Offerings, you are agreeing to the revised Terms.
PLEASE PRINT A COPY OF THESE TERMS FOR YOU RECORDS AND PLEASE CHECK THE SITE FREQUENTLY FOR ANY CHANGES TO THESE TERMS.