Terms and Conditions of VTech Software
These Terms and Conditions have been updated as of 19 February 2016.
The following specifies the Terms and Conditions on which VTech Electronics North America LLC (hereinafter called “VTech”) offers you to install and use the VTech Software (hereinafter called “VTech Software”) which you can download from a VTech-designated website (hereinafter called the “Website” or “Site”) through Learning Lodge. Please read the following Terms and Conditions carefully before installing and using the VTech Software.
1. Acceptance
of Terms and Conditions
1.1 The VTech Software is available for
individuals aged 18 years or older. If you are under the age of 18, you should
review these Terms and Conditions with your parent/guardian to make sure you
and your parent/guardian understand these Terms and Conditions. These Terms and
Conditions create an agreement between VTech and an adult parent/guardian of
any minor child who uses the VTech Software.
1.2 Use
of the VTech Software shall constitute your acceptance of these Terms and
Conditions. If you do not accept any of these Terms and Conditions, please do
not install and use the VTech Software.
2. Modification of Terms
VTech may
revise these Terms and Conditions from time to time with or without notice to
you. The revised Terms and Conditions shall take effect immediately when they
are posted on the Website. You are responsible for reviewing regularly
information posted online to obtain timely notice of such changes. Your use of
the VTech Software following the posting of any changes to these Terms and
Conditions shall constitute your acceptance of those changes.
3. VTech Software
3.1 VTech Software includes, but is not limited to e-books, games and award certificates. You may store a copy of the VTech Software onto your personal computer and install it onto the VTech compatible products again if the VTech Software disappears from the VTech compatible products accidentally (e.g. after powering off).
3.2 VTech may provide upgrades for your compatible VTech products from time to time without any prior written notice. You shall read and precisely follow the instructions before initiating an upgrade. You shall download these upgrades in an environment with a steady power supply. If the upgrade process is interrupted, your compatible VTech products may not function properly. You must follow the download procedure as explained on the Site in order to properly access the upgrade. Failure to follow the download procedure as explained on the Site may result in data loss, including but not limited to the original data stored on the devices. VTech will not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to use of or inability to use the VTech Software and/or the Website.
3.3 VTech may upgrade the Website from time to time and such upgraded changes will be automatically provided to you the next time you connect your designated personal device to the Internet. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Website, including the release of new products or services, shall be subject to these Terms and Conditions and the Privacy Policy, which is incorporated into these Terms and Conditions by reference and available at http://www.vtechkids.com/privacy_policy/.
3.4 You agree that the transaction is completed once the VTech Software has been downloaded to the VTech compatible products and VTech is not responsible for sending a physical copy of the VTech Software to you.
3.5 VTech can impose additional restrictions, rules or charges concerning the installation or use of the VTech Software and revise the same from time to time at its sole discretion without notice. VTECH RESERVES THE RIGHT TO ALTER OR REMOVE THE VTECH SOFTWARE OR THIS WEBSITE OR SUSPEND OR TERMINATE YOUR USE IN ANY WAY, AT ANY TIME, FOR ANY REASON, WITHOUT PRIOR NOTIFICATION, AND WILL NOT BE LIABLE IN ANY WAY FOR POSSIBLE CONSEQUENCES OF SUCH CHANGES.
4. Payment
You can buy VTech Software by using the payment gateway as referred by VTech at the Website (“Payment Gateway”). Payment using the Payment Gateway shall be made by credit card via [Powerpay] (Visa/MasterCard) or PayPal™ or any other method(s) specified thereat by VTech from time to time. By submitting your particulars under the Payment Gateway, you acknowledge and confirm that (a) you have the right to operate the account, whether it is a credit card account, PayPal™ account, gift card account, or any other account from or through which payment is made to VTech, keyed into the Website by you (hereinafter called the “Account”); (b) all particulars given under the Payment Gateway are accurate and complete; and (c) VTech shall be authorized to debit the Account (if it is a credit card account) or your bank account through the Account (if it is a PayPal™ account or a gift card account) the sum shown to or selected by or keyed into by you under the Payment Gateway.
PayPal is a registered trademark of Paypal, Inc.
You acknowledge that VTech shall simply forward all particulars you give under the said Payment Gateway to the operator(s) for real-time verification purposes and VTech shall not have any confidentiality obligations to you in this regard. You further acknowledge that VTech shall not be liable for any damages or losses of any kind related to your use of or inability to use the Payment Gateway for any reason.
5. Limited
Warranty
5.1 VTech warrants to you that the VTech
Software shall work as designed for a period of ninety (90) days from the date
of installation and VTech will correct any defect and provide updates as soon
as commercially feasible. VTech shall have no further liability to you after such correction
and/or updates are provided.
5.2 VTech shall have no liability for any
damage, loss, expense or detriment caused, whether directly or indirectly, by a
defect in the VTech Software or arising in respect of your use of or inability to
use the
VTech Software and/or the Payment Gateway.
6. Intellectual Property Rights
6.1 The VTech Software is the property of VTech or its
licensors and is protected by copyright, trademarks and/or other proprietary
rights.
6.2 VTech grants to you a non-exclusive, non-delegable, non-transferable
license to install one copy of the VTech Software to a maximum number of five
(5) VTech compatible products of the same kind for personal, non-commercial, entertainment use subject to and in
accordance with these Terms and Conditions set out herein. You acknowledge
that you shall acquire no rights to the VTech Software and/or the Website other
than the license in accordance with these Terms and Conditions as set out
herein.
6.3 You represent, warrant and agree that you will use the VTech Software only for your personal, non-commercial, entertainment use and not for any redistribution of the VTech Software or other use restricted in this clause. You agree not to infringe the rights of the VTech Software’s copyright owners and to comply with all applicable laws in your use of the VTech Software. Except as set forth above, you agree that you will not redistribute, transmit, assign, sell, broadcast, rent, share, lend, modify, adapt, edit, sublicense, or otherwise transfer or deal with the VTech Software. Without limitation, you are not granted any synchronisation, public performance, promotional use, commercial sale, resale, reproductions or distribution rights for the VTech Software. You acknowledge that the VTech Software embodies the intellectual property of a third party or parties and is protected by law.
7. Indemnity
You agree to hold VTech, and its parent, subsidiaries, affiliates, directors,
officers, agents, co-branders or other partners, and employees harmless from
and against any or all claims, proceedings, damages, losses, injuries, costs
and expenses or liabilities arising from your breach of any of these Terms and
Conditions and any deletions, additions, insertions, or alterations to, or any
unauthorized use by you of, the Website, VTech Software, or related
services. Furthermore, you will be responsible for any claims,
proceedings, damages, losses, injuries, costs and expenses or liabilities
suffered by VTech as a result of your breach of any of these Terms and Conditions.
8. Warranty Disclaimers and Links to Third Party Websites
8.1 TO THE EXTENT PERMITTED BY LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE WEBSITE (INCLUDING ALL CONTENT CONTAINED IN IT), THE SOFTWARE AND FIRMWARE DOWNLOADED THEREFROM, AND RELATED SERVICES IS AT YOUR SOLE RISK. To the extent permitted by law, the Website (including all content contained in it), VTech Software, the software and firmware, and related services are provided on an “AS IS” and “as available” basis, without warranties, representations or conditions of any kind, either express or implied, including, without limitation, warranties, representations, or conditions as to merchantability, accuracy, fitness for a particular purpose, non-infringement, use, availability, or performance of the Website and the software and firmware downloaded therefrom. You therefore release VTech, its suppliers, licensors, parent company, subsidiaries, affiliates, directors, officers, agents, co-branders, other partners, and employees from any and all liability for any injury, loss, or harm of any kind that arises from your use of the Website and your or your child’s use of any software or firmware downloaded therefrom or related services.
8.2 The Website may provide, or third parties may provide, links to other World Wide Web sites or resources. Because VTech has no control over such sites and resources, you acknowledge and agree that VTech is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources including without limitation for the accuracy, non-infringement or legality of such content, advertising, products, services or other materials.
9. Limitation of Liability
9.1 VTech shall use reasonable efforts to ensure the security of the website, the software and firmware downloaded therefrom, and related services and to protect information submitted by you or your child in connection with your use of this website and your or your child’s use of any software or firmware downloaded therefrom.
9.2 Although we try to keep this website, the software of firmware downloaded therefrom, related services, and the information you or your child submits safe and secure, VTech does not represent or guarantee that the website, the software or firmware downloaded therefrom, related services, or information will always be available or free from loss, corruption, viruses, interference, unauthorized access, or other compromises or impairments, and VTech disclaims any liability relating thereto. YOU THEREFORE AGREE THAT YOUR USE OF THE WEBSITE AND YOUR OR YOUR CHILD’S USE OF THE SOFTWARE, FIRMWARE, AND RELATED SERVICES AND YOUR AND YOUR CHILD’S SUBMISSION OF INFORMATION ARE AT YOUR SOLE RISK.
9.3 YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER VTECH NOR ITS SUPPLIERS, LICENSORS, PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, AGENTS, CO-BRANDERS, OTHER PARTNERS, OR EMPLOYEES WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES OR LOSS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF VTECH HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE WEBSITE OR SOFTWARE OR FIRMWARE DOWNLOADED THEREFROM OR RELATED SERVICES; THE USE OR THE INABILITY TO USE THE WEBSITE, SOFTWARE OR FIRMWARE OR RELATED SERVICES; UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, DESTRUCTION, DAMAGE TO, OR DELETION OF YOUR OR YOUR CHILD’S TRANSMISSIONS OR DATA OR DEVICE; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OR INTERNET OUTAGES; OR OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE.
9.4
Notwithstanding anything to the contrary contained herein, VTech’s liability to
you for any cause whatsoever and regardless of the form of the action, will at
all times be limited to the amount paid, if any, by you to purchase a VTech
device or software.
10. Termination
If you fail to comply with any of the Terms and Conditions or with any provision of the Privacy Policy, VTech at its sole discretion, without notice to you may terminate the agreement between you and VTech. VTech shall not be liable to you or any third party for the termination of the agreement. The following provisions of the Terms and Conditions survive any termination of these Terms: Indemnity, Warranty Disclaimers and Links to Third Party Websites; Limitation of Liability; Termination; No Third Party Beneficiaries; Binding Arbitration and Class Action Waivers; and Intellectual Property Rights.
11. No Third Party Beneficiaries
You agree that, except as otherwise expressly provided in these Terms and Conditions, there shall be no third party beneficiaries to the Terms and Conditions or the Privacy Policy.
12. Severability
If any one or more of these Terms and Conditions, or their application in any
circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of that term or condition in
any other respect and the remaining Terms and Conditions shall not in any way
be impaired.
13. Waiver
VTech’s failure to exercise or enforce any right or Terms and Conditions shall not constitute a waiver of such right or Terms and Conditions.
14. Choice of Law and Forum and Consent to Electronic Communications
These Terms and Conditions shall be governed and construed in accordance with the laws of the State of Illinois, USA, excluding its conflicts of law rules. Any dispute arising out of or relating to these Terms and Conditions or your access or use of this Website will be subject to the exclusive jurisdiction of the courts located within Cook County in the State of Illinois, and you hereby submit to the personal jurisdiction of such courts. When you visit our Website or send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on this Website. 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.
15. Privacy Statement
VTech is committed to protecting your and your child’s privacy and safeguarding any personal information we collect. VTech may collect information from you during the registration process for the Website and may collect information from you or your child during your or your child’s use of software or firmware downloaded from the Website or use of related services. Our policies regarding collection, use, storage, protection, and disclosure of this information are contained in VTech’s Privacy Policy, which is incorporated into these Terms and Conditions by reference and available at http://www.vtechkids.com/privacy_policy/.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Website or the software or firmware downloaded therefrom or the Terms and Conditions must be filed within one (1) year after such claim or cause of action arose or be forever barred.
The section titles in the Terms are for convenience only and have no legal or contractual effect.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Initial Dispute Resolution
18.1 Our customer service department is available by email at vtechkids@vtechkids.com or via telephone 1-800-521-2010 to address any concerns you have regarding the Site. Our customer service department is able to resolve most concerns quickly to our customers’ satisfaction. The parties shall use their best efforts through this customer service process to settle any dispute, claim, question, or disagreement and good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration.
18.2 If the parties do not reach an agreed upon solution within a period of 30 days from the time informal dispute resolution under Section 18.1 begins, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms and Conditions (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Website or the software or firmware downloaded therefrom shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions.
18.3 The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms and Conditions, including, but not limited to any claim that all or any part of these Terms are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
18.4 The Commercial Arbitration Rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, VTech will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, VTech will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
18.5 If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. For non-U.S. residents, arbitration shall be initiated in Cook County, State of Illinois, United States of America, and you and VTech agree to submit to the personal jurisdiction of any federal or state court in Cook County, Illinois, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
18.6 The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND VTECH 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. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
18.7 Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
18.8 You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to the following address: VTech Electronics North America LLC, 1156 W. Shure Drive, Arlington Heights, Illinois, 60004. The notice must be sent within 30 days of February 19, 2016 or your first use of the Learning Lodge™ or the Website, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, VTech also will not be bound by them.
18.9 VTech will provide 60-days’ notice of any changes to this section. Changes will become effective on the 60th day, and will apply prospectively only to any claims arising after the 60th day.
18.10 For any dispute not subject to arbitration you and VTech agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Cook County, Illinois. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.
The Terms and the relationship between you and VTech shall be governed by the laws of the State of Illinois without regard to conflict of law provisions.