kidthing® - Terms of Sale

kidthing© - a better way to click and play

Terms of Sale

These Terms of Sale provide the terms on which kidthing sells you Products from the kidthing® Service.

THESE TERMS OF SALE ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND KIDTHING, INC. (“KIDTHING”). BY PURCHASING PRODUCTS FROM THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SALE.

TERMS OF SALE

Capitalized terms used in these Terms of Sale and not defined here have the meaning provided in the Terms of Service, which can be viewed at www.kidthing.com.

Your use of the Service includes the ability to enter into agreements and/or to make purchases electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO IN CONNECTION WITH THE SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS AND REGISTRATION.

Contents:

· Products

· Agreement to Pay

· Delivery of Products

· Refund Policy-All Sales are Final

· Payment Methods

· Sales Tax

· Gift Certificate Purchase

· kidthing Credits

· Limited License

· Upgrades

· Product Modifications

· Content Availability

· For Assistance with Orders-Store Customer Service

· Usage Rules

· Other Terms and Conditions

1. Agreement to Pay.

a. Payment for Products. You agree to pay for all Products you purchase through the Service, and that kidthing may charge your credit card for any Products purchased, and for any additional amounts (including any taxes or late fees, as applicable) as may be accrued by or in connection with your Account. All fees will be billed to the credit card you designate during the registration process. If you want to designate a different credit card or if there is a change in your credit card status, you must change your credit card account information online at the Account Information section of the Service (there may be a temporary disruption of your access to the Service until kidthing is able to verify the validity of the new credit card account information).

b. Right to Change Prices and Availability of Products.Products are subject to change at any time. The total price will include the price of the Product plus any applicable sales tax (in effect on the day of your initial download). kidthing reserves the right to change prices for Products offered at the kidthing Store at any time, and does not provide price protection or refunds in the event of a price drop or promotional offering.

c. Sales to End-Users Only. kidthing sells Products to end-user customers only.

2. Delivery of Products.Products are delivered to You only by electronic transmission (no physical media). Products will ordinarily begin to download to Your Player within a few minutes of purchase. The size of the Product, Your Internet connection speed and other factors will affect how long the Product takes to download.

3. All sales are final. Once you click the “Checkout” button from the kidthing Store Shopping Cart, your purchases will be charged to the credit card you provide. If there is an error with your order, please contact us immediately by email at customersupport@kidthing.comor by phone +1-213-625-1281 or toll free within the US at 1-888-861-2555.

4. Payment Methods.

a. kidthing accepts most credit cards as forms of payment. Billing to your credit card account occurs at the time of purchase. If the balance from a kidthing Credit or Gift Certificate is used for a kidthing Store Purchase, the amount is deducted from your account at the time of purchase. If the total amount of the purchase is greater than the balance available in your kidthing Credit or Gift Certificate, your credit card will be charged for the balance.

b. kidthing accepts the following credit cards: Visa, MasterCard, American Express, and Discover.

c. From time to time, credit cards are declined for various reasons. If a purchase has been declined due to a credit card issue, first please ensure all data is correct and resubmit. If the transaction is still not accepted, you may wish to try another credit card.

5. Sales Tax. When required, kidthing purchases will include sales tax based on your “bill-to” address and the sales tax rate in effect at the time of download. We will only charge tax in jurisdictions where content downloads are taxable. No customers are eligible for tax exemptions for purchases made on kidthing.

6. Gift Certificate Purchases. Gift Certificates may be redeemed for kidthing Store purchases only and are non-refundable. Sales tax will not be charged when the Gift Certificate is purchased. Sales tax is charged, where applicable, when the Gift Certificate is redeemed for a kidthing Store purchase. The tax rate on the purchase is based on the address of the redeemer (see Sales Tax section for more information). Purchases for Gift Certificates may be purchased only in whole dollar increments or designated amounts. Gift Certificates may not be used to purchase other Gift Certificates.

7. kidthing Credits. kidthing Credits may be redeemed for kidthing Store purchases only and have no cash value. Sales taxes may apply to purchases made using kidthing Credits and if so, you will be responsible for the payment of such sales taxes. Some Products in the Store may not be eligible for purchase using kidthing Credits.

8. Products. Products can only be accessed and played in the free, downloadable kidthing Player. Before downloading and playing any Product, you must have downloaded and installed the kidthing Player. The latest version of the kidthing Player software is available for download at no charge. Use of the kidthing Player software is subject to acceptance of its End-User License Agreement (EULA) presented at the time of installation. If you uninstall your kidthing Player or if your license to the Player or any Products is terminated, you will be unable to access or play the Products.

The latest version of the kidthing Player software is recommended to access the kidthing Store and use the Service. From time to time, an upgrade to the latest version of the kidthing Player software may be required to make purchases from the kidthing Store or to take advantage of new features of the kidthing Store. The latest version of the kidthing Player is available for download, at no charge, fromwww.kidthing.com/download

9. Product License and Restrictions.

a. License. In purchasing and downloading any Product, such Product is licensed, not sold, to You by kidthing for use only under the terms of the license granted to You in this Section 9 (the “License”), and kidthing reserves all rights not expressly granted to You. Subject to the limited license granted to You, kidthing and its licensors retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Product (as an independent work and as an underlying work serving as a basis for any application or content that You may develop) and all copies thereof. The rights granted herein are limited to kidthing’s and its licensors’ intellectual property rights in the Software and do not include any other patents or intellectual property rights. All rights not specifically granted in this License, including Federal and International Copyrights, are reserved by kidthing and its licensors.

You are being granted a limited, non-exclusive, worldwide, royalty free license, for personal and non-commercial use only, to use, copy, display, and perform such Product within the Player. You may also have the ability, depending on the Product, to combine the Product with other content and otherwise modify the Product as enabled by features of the kidthing Player, transfer the Title to another registered user or and share the foregoing with other members of the Service who have also purchased such Product.

Except as, and only to the extent, expressly permitted in this License or by applicable law, You may not distribute, rent, lease, lend, transfer, sublicense, copy, reproduce, decompile, reverse engineer, disassemble, modify, or create derivative works of the Product or any part thereof.

Your rights under this License will terminate automatically without notice from kidthing if You fail to comply with any term(s) of this License, the Terms of Sale, Terms of Service or Player EULA. Upon the termination, You shall not use the Products and Your ability to access and use the Products shall cease.

NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN.

b. Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE PRODUCTS ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KIDTHING AND KIDTHING’S LICENSORS (COLLECTIVELY REFERRED TO AS “KIDTHING” FOR THE PURPOSES OF SECTIONS 9(b)-(c)) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.

KIDTHING DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE PRODUCTS, THAT THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED.

NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KIDTHING OR A KIDTHING AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCTS, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OR THE PERIOD REQUIRED BY LAW, WHICHEVER IS LONGER.

(USA only) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

c. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL KIDTHING BE LIABLE TO YOU OR ANY THIRD PARTY FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCTS, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF KIDTHING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

In no event shall kidthing’s total liability to You for all damages exceed the amount YOU PAID FOR THE PRODUCTS.

The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

(USA only) SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS LICENSE.

d. The Warranty Disclaimer, Exclusive Remedies and Limited Liability set forth above are fundamental elements of the basis of the agreement between kidthing and You. kidthing and its licensors would not be able to provide the Products on an economic basis without such limitations. Such Warranty Disclaimer, Exclusive Remedies and Limited Liability inure to the benefit of kidthing’s licensors. The limitations or exclusions of warranties, remedies or liability contained in this License shall apply to You only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where You are located at the time of purchase.

e. Government Users. All Products and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1through 227.7202–4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under U.S and applicable copyright laws.

f. Export and Use Restrictions. You may not use or otherwise export or reexport the Product except as authorized by United States law and the laws of the jurisdiction in which the Product was obtained. In particular, but without limitation, the Product may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. At the time of purchasing and downloading any Product, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Product for any purposes prohibited by United States law or any law applicable to You.

g. Governing Law/Arbitration.This License will be governed by and construed in accordance with the laws of the State of California, as applied to agreements entered into and to be performed entirely within California between California residents. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. Any dispute or claim arising out of or related to this License shall be finally settled by binding arbitration in Los Angeles, California USA, under the Rules of the AAA by three arbitrators appointed in accordance with said Rules. You hereby consent to the jurisdiction of the state or federal courts within the State of California or any other jurisdiction necessary to enforce any determination or award of the AAA. The parties may apply at any time to any state or federal court for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrators.

h. Language. Any translation of this License is done for local requirements or convenience only and, in the event of a dispute between the English and any non-English versions, the English version of this License, construed and interpreted in the English language as commonly used in the United States of America, shall govern.

10. Product Modifications or Recalls. kidthing reserves the right to edit or otherwise modify Products purchased from the kidthing, including Products purchased but not yet downloaded. Among other things, such modifications may result in new or omitted content or features and larger file sizes (requiring, for example, longer download times and additional disk space for storage). In the event of a problem or a third party claim involving a Product that You have purchased, kidthing may at any time recall that Product and reimburse You the price you paid for that Product. Upon such recall, You shall no longer be able to access or play such Product.

11. Content Availability. kidthing seeks to provide a broad content offering. For this reason, kidthing reserves the right to change content options without notice. On occasion, a Product may become unavailable following purchase but prior to download. Your sole remedy in such cases is a refund of the purchase price paid for the unavailable Product. Please contact kidthing Store Customer Service for assistance in such cases (see below). In some cases, Product you purchase will become unavailable at some point following your initial download of the Product. In such cases, you will not be able to download replacement copies of the Product or access that Product from other locations with your kidthing Account. kidthing does not offer any refunds in such events.

12. For Assistance with Orders – Store Customer Service

For assistance with billing questions or other order inquiries, please refer to our online support page located at www.kidthing.com/support.

If you cannot find the answers you are seeking, please email us at customersupport@kidthing.com. Responses to emails will be provided as soon as possible.

You can also call us at +1-213-625-1281 or toll free within the US at 1-888-861-2555.

13. Usage Rules

Your use of any Products purchased from the Service is conditioned upon your prior acceptance of the kidthing Terms of Service (located at www.kidthing.com), including, without limitation, the Usage Rules set forth in the Terms of Service.

14. Other Terms and Conditions

a. kidthing is not responsible for typographic errors.

b. kidthing reserves the right to change the terms and conditions of sale at any time. Customers are encouraged to review the Terms of Sale on a periodic basis for modifications.

c. All sales are governed by California law, without giving effect to its conflict of law provisions. Risk of loss and title for all electronically delivered purchases pass to the purchaser in California upon initial electronic transmission to the purchaser or recipient (if a gift). These Terms of Sale shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

d. No kidthing employee or agent has the authority to vary any of the kidthing Store’s policies or the terms and conditions governing any sale.