1. GENERALLY
1. 1.1 Ajwa online Shop Materials.
This Site, our systems, our databases, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by TRU Kids or any subcontractor engaged by TRU Kids in connection with this Site or otherwise comprise or relate to this Site, the designs of each of the foregoing, and any and all intellectual property rights in the foregoing (collectively, the “ Ajwa Materials”) shall at all times remain the exclusive property of TRU Kids and its third-party licensors. Any third-party software included in this Site is licensed subject to the additional terms of the applicable third-party license.
1.2 Modification.
We may discontinue or alter any aspect of this Site, restrict the time this Site is available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to this Site without prior notice or liability to you. Your only remedy is to discontinue using this Site if you do not want a modification we make to this Site..
1.3 Removal of Access.
Your access to this Site is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to this Site or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to this Site; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
1.4 Defects and Availability
We use commercially reasonable efforts to maintain this Site, but we are not responsible for any defects or failures associated with this Site, any part thereof, any Feedback you provide, or any damages (such as consequential or indirect damages) that may result from any such defects or failures. This Site may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that this Site is provided over the Internet, so the quality and availability of this Site may be affected by factors outside of our control. This Site is not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of this Site. We do not represent, warrant, or guarantee that this Site will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to this Site being unavailable.
You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of this Site in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which this Site is based; (3) use this Site or TRU Kids IP to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of this Site, servers, or networks connected to this Site or take any other action that interferes with any other person’s use of this Site; (5) decrypt, transfer, create Internet links to this Site, or “frame” or “mirror” this Site on any other server or wireless or Internet-based device; (6) use or merge this Site or any component thereof with other software, databases, or Site not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to this Site; (8) use this Site for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with this Site; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on this Site for any reason; (11) access or attempt to access any other user’s account; (12) use any TRU Kids IP made available through this Site in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into this Site any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm this Site, or perform any such actions; (14) introduce into this Site any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter this Site, TRU Kids Content, or notices on this Site; (16) connect to or access any TRU Kids computer system or network other than this Site; or (17) impersonate any other person or entity to use or gain access to this Site. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
2. CONTENT AND MATERIALS ON THIS SITE
2.1 TRU Kids Content
This Site may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “TRU Kids Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any TRU Kids Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the TRU Kids Content.
2.2 User Content.
This Site may allow you to upload, download, store, or transmit user-generated data or information, including personal information such as your name, photo, or contact details (“User Content”). By submitting User Content to this Site or by interacting with this Site through social media platforms (such as, for example, using a promoted hashtag), you grant TRU Kids a nonexclusive, worldwide, royalty-free, assignable, sublicensable, perpetual right and license to use, copy, and display User Content in connection with TRU Kids’s operation of this Site. You further grant TRU Kids a nonexclusive, perpetual, assignable, sublicensable, worldwide, royalty-free right and license to use, copy, display, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, transfer, sublicense, create derivative works of, and compilations incorporating, User Content to provide benchmarking, performance improvement, marketing and advertising, and other lawful purposes in connection with the operation of TRU Kids’s business, including without limitation as it relates to the design, manufacture, distribution, sale and/or promotion of any goods and/or services branded under any intellectual property owned by TRU KIDS. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH THIS SITE. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, TRU KIDS CONTENT, OR OTHER CONTENT YOU FIND ON THIS SITE IS SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE IN ANY WAY FOR USER CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE TRANSMISSION OF ANY OF USER CONTENT THROUGH THIS SITE.
2.3 User Content Restrictions
You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of TRU Kids or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, TRU Kids, or this Site; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; (e) hacking or cracking; (f) illicit drugs and drug paraphernalia; (g) sale of alcohol, tobacco, or tobacco-related products; or (h) the sale of weapons or ammunition. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content. We cannot and do not assume any responsibility for your use or misuse of TRU Kids Content, User Content, or any other information transmitted, monitored, stored, or received while using this Site. We reserve the right to amend or delete any TRU Kids Content (along with the right to terminate or restrict use of or access to this Site) that in our sole discretion violates any of the above. By providing User Content via this Site, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such User Content. You agree that we are not liable for any legal violation caused by your use or misuse of TRU Kids Content or other information transmitted, monitored, stored, or received while using this Site.
2.4 Feedback.
We welcome your comments, feedback, information, or materials regarding this Site or any of the Products (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
2.5 Links; Third Party Materials
This Site may include links to other websites, resources on the Internet, or utilize the services or content of our Partners or other third parties (such as our e-commerce provider to process payment-related information in accordance with Section 5) (collectively, “Third Party Materials”). Because we have no control over Third Party Materials or the administration of Third Party Materials by the third parties that provide them, you acknowledge and agree that we are not responsible for the availability of such materials, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Materials, or for any privacy or other practices of the third parties operating those website or providing such materials. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Materials. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third party website and Third Party Materials.
2.6 Ownership of Intellectual Property.
TRU Kids or its licensors exclusively own all right, title and interest in and to this Site, the TRU Kids Materials, the TRU Kids Content, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “TRU Kids IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the TRU Kids IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the TRU Kids IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm TRU Kids’s right, title and interest in the TRU Kids IP. TRU Kids is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any TRU Kids IP. The sole exception of the foregoing reservation of rights is the limited, non-exclusive, and non-transferable authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any TRU Kids IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
3. Accounts
3.1 Registration
Access to certain features on this Site may require you to be registered with us via a TRU Kids-generated registration form. This form will require you to provide certain requested information, including personal information. Upon successful completion of this form, you will be provided with an account and login information including a username and password to successfully complete the registration process. You are the only person authorized to access and use your account. For more information about our collection of personal data about you in connection with account registration on this Site, please review our Privacy Statement.
3.2 Unauthorized Use and Information Changes.
You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
3.3 Storing Credentials.
This Site may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access this Site. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to TRU Kids or this Site resulting from unauthorized access to this Site from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
4. ACCESS THROUGH MOBILE DEVICES
4.1 Mobile Use.
Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using this Site on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection Site while accessing or using this Site, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES. Please review our Privacy Statement for more information on how we administer SMS text messaging, including details on how to opt-out.
5 PRODUCT ORDERS
5.1 General
This Section governs your purchase of products made available through this Site (each, a “Product”) and offered for sale directly from TRU Kids through our network of authorized retailers, partners, licensors and fulfillment centers (collectively, “Partners”). All Products offered via this Site are subject to availability and prices for Products are subject to change without notice at any time. All orders for Products (each, an “Order”) placed by you are subject to acceptance by us and/or our Partners. Our Partners may sell direct to you from time-to-time. All Orders shall, at a minimum, identify the Products purchased, quantities, price, shipping costs, and taxes. Once placed by you, either TRU Kids or our Partner will use commercially reasonable efforts to secure title to the Product and determine the date and time for shipment. TRU Kids or our Partners reserve the right to cancel or refuse any Order for any reason at any time prior to shipment, including after an Order has been submitted, whether or not the Order has been confirmed. TRU Kids or our Partners may attempt to contact you if all or a portion of your Order is cancelled, or if additional information is needed to complete and accept your Order. Products may be made available for reservation and pre-order via this Site. If you pre-order a Product that is not yet available for sale, we may, depending on the offer, charge your credit card for the cost of the Product plus any applicable charges for taxes and shipping, and will ship you the Product once it is available.
5.2 Product Purchasing.
To purchase a Product, you will be required to provide information regarding your credit card or other payment instrument (“Payment Method”) to our third party e-commerce platform provider, Salesforce, a provider of PCI-DSS compliant e-commerce merchant services (“Provider”). You represent and warrant to TRU Kids, our Partners, and our Provider that the information pertaining to your Payment Method is true and that you are an authorized user of the Payment Method. You hereby authorize us through our Provider to bill to your Payment Method in accordance with the terms of the Order for the Products you are purchasing. If any bank or other financial institution refuses to honor any payment of yours, we may charge you a fee up to the maximum amount permitted under applicable law and seek any other damages or remedies available. When providing a Payment Method, our Provider may allow you to keep such Payment Method on file in order to facilitate future Orders (TRU Kids does not retain, store, or otherwise manage credit card information). If you want to use a different Payment Method than the one you signed up to use during registration or when you placed an Order, you may edit your Payment Method information by logging into your account management tools on this Site, which securely connects to our Provider. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, we may reject your Order. If we do not reject your Order, you authorize us to charge you for any Product purchases you make, and you will remain responsible for any uncollected amounts.
5.3 Products, Content and Specifications.
All features, content, specifications of the Products described or depicted on the Site are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. TRU Kids and our Partners make all reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. TRU Kids may provide certain information about certain Products on the Site as a convenience only and may provide links to our Partners’ websites where the particular Product may be available for purchase. The inclusion of any Products on the Site at a particular time does not imply or warrant that these Products will be available at any time from our Partners or offered for sale at a particular price.
5.3 Products, Content and Specifications.
All features, content, specifications of the Products described or depicted on the Site are subject to change at any time without notice. Certain weights, measures and similar descriptions are approximate and are provided for convenience purposes only. TRU Kids and our Partners make all reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. TRU Kids may provide certain information about certain Products on the Site as a convenience only and may provide links to our Partners’ websites where the particular Product may be available for purchase. The inclusion of any Products on the Site at a particular time does not imply or warrant that these Products will be available at any time from our Partners or offered for sale at a particular price.
5.4 Taxes
You are responsible for, and agree to pay, all taxes, fees, and any other duties or surcharges set by any governmental agency or taxing authority. You agree to indemnify and hold TRU Kids and our Partners harmless for any liability for taxes owed in connection with your purchase of a Product.
5.5 Billing Details.
Please contact us here if you believe there are any billing errors, or if you have any other questions related to your account history or bill. You must notify us here or change your information via your online account immediately in the event of any change in your name, billing address, service address, email address, telephone number, credit or debit card, or other account information. You can dispute your account history or bill by contacting us hereUnless otherwise provided by law, you must still pay any disputed charges until the dispute is resolved.
5.6 Order Fulfillment.
TRU Kids does not guarantee shipping or delivery times and is not liable for the actions or conduct of our Partners or shipping carriers. A delayed delivery of any part of an Order does not entitle you to cancel other deliveries. TRU Kids is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond TRU Kids’s, our Partner’s, or our shipping carrier’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, pandemics, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources (“Force Majeure”). In the event of Force Majeure condition, TRU Kids’s time for performance shall be extended for a period equal to the time lost as a consequence of the Force Majeure condition without subjecting TRU Kids to any liability or penalty. TRU Kids may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to you.
5.7 Customer Assurance.
Because customer service is paramount to our business, we reserve the right to refuse to sell Products to you if it reasonably appears to us that you intend to resell the Products or have engaged in fraudulent behavior. We further reserve the right to limit quantities of Products purchased by each Customer. In addition, we reserve the right to cancel any Order or part of an Order, or refuse service to anyone for any reason. Such reasons may include, but are not limited to unauthorized voucher use, Product availability, and price discrepancy.
5.8 Returns; Exchanges; and Refunds.
Only Products originally purchased through this Site may be considered for return, refund, or exchange. To return a Product or request a refund or exchange, contact us here. TRU Kids does not offer returns or exchanges for all Products at all times and exclusions may apply.
5.9 Limited Warranty.
EXCEPT AS EXPRESSLY PROVIDED BY TRU KIDS OR OUR PARTNERS IN CONNECTION WITH A PRODUCT, TRU KIDS MAKES NO WARRANTIES REGARDING THE PRODUCTS AND ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, TRU KIDS MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
5.10 Limitation of Liabilities.
TRU KIDS SHALL NOT BE LIABLE FOR LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, LOSS OF DATA, INJURY TO REPUTATION, PUNITIVE DAMAGES, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE RELATED TO A PRODUCT OR AN ORDER. YOUR RECOVERY FROM TRU KIDS FOR ANY CLAIM SHALL NOT EXCEED THE LESSER OF THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCT OR ONE HUNDRED DOLLARS ($100.00 USD) IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. YOU ACKNOWLEDGE THAT USE OF ANY PRODUCT IS AT YOUR SOLE RISK AND YOU AGREE THAT TRU KIDS IS NOT LIABLE, IN WHOLE OR IN PART, FOR ANY CLAIM OR DAMAGE ARISING FROM YOUR USE OF THE PRODUCT. YOU WILL INDEMNIFY, DEFEND AND HOLD TRU KIDS, OUR PARTNERS, AND OUR PROVIDER HARMLESS FROM ANY ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH (A) YOUR PURCHASE AND USE OF THE PRODUCT AND COMPLIANCE WITH THE PRODUCT DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (B) MODIFICATION OF A PRODUCT (INTENTIONAL OR UNINTENTIONAL), OR (C) USE IN COMBINATION WITH OTHER PRODUCTS.
6. REPRESENTATIONS
6.1 General Representations.
You hereby represent and warrant that: (1) you (a) are either over the age of 18 or you are 13 or older and have your parent or guardian’s consent to the terms of this Agreement; and (b) have the power and authority to enter into and perform your obligations under this Agreement; (2) all information provided by you to us is truthful, accurate and complete; (3) you will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of this Site, your Feedback, or any part thereof; (4) if applicable, you have provided and will maintain accurate and complete information with us, including, without limitation, your legal name, email address, and any other information we may reasonably require; (5) your access to and use of this Site or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (6) you will immediately notify us in the event that you learn or suspect that the contact information you provided to us has been disclosed or otherwise made known to any other person; (7) you will not use this Site in order to gain competitive intelligence about us, this Site, or any Product or service offered via this Site or to otherwise compete with us; and (8) your User Content does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party.
6.2 Systems Representations.
You represent that you shall, at all times during the term, procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications Site, necessary for you to access and use this Site (collectively, the “Customer Systems”). You further represent that in connection with your Customer Systems, you shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely administer the distribution and use of this Site, and protect against any unauthorized access to or use of this Site.
6.3 Feedback Representations
In the event you provide any Feedback via this Site, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
6.4 Parents of Minor Children.
If you are a parent or legal guardian entering this Agreement for the benefit of your child or a child in your legal care, be aware that you are fully responsible for the child’s use of the Site, including all financial charges and legal liability that he or she may incur.
7. DISCLAIMERS OF WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS SITE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THIS SITE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THIS SITE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THIS SITE WILL BE CORRECTED, THAT THIS SITE AND ANY CONTENT OR INFORMATION FOUND ON THIS SITE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THIS SITE WILL MEET YOUR EXPECTATIONS. ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THIS SITE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THIS SITE OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. INDEMNITY; LIMITATION OF LIABILITY
8.1 Indemnity.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS TRU KIDS, OUR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, PARTNERS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF THIS SITE, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) ANY USER CONTENT YOU PROVIDE THROUGH THIS SITE, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.
8.2 LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL TRU KIDS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THIS SITE. IF YOU ARE DISSATISFIED WITH THIS SITE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THIS SITE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF THIS SITE IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).
8.3 For California Residents.
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST TRU KIDS.
9 DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS
9.1 Governing Law.
This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of New Jersey without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Morris County, New Jersey or any United States District Court located in Essex County, New Jersey, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Morris County, New Jersey. You irrevocably submit and consent to the personal jurisdiction of such courts.
9.2 Dispute Resolution.
This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of New Jersey without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Morris County, New Jersey or any United States District Court located in Essex County, New Jersey, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Morris County, New Jersey. You irrevocably submit and consent to the personal jurisdiction of such courts.
9.3 Binding Arbitration.
If you and TRU Kids are unable to resolve a Dispute through informal negotiations, either you or TRU Kids may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and TRU Kids may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
9.4 Waiver of Rights.
You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under applicable law to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE INDIVIDUAL CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER INDIVIDUALS.
10. MISCELLANEOUS
10.1 Term.
This Agreement is effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to this Site. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third-party for any termination or suspension of your access to this Site or any part thereof.
10.2 Independent Contractors.
You understand and expressly agree that you and TRU Kids are independent contractors and not agents or employees of the other party. Neither you nor TRU Kids has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
10.3 Consent to Do Business Electronically.
We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor TRU Kids will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
10.4 Equitable Relief.
You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
10.5 Privacy.
We collect, store, and use data collected from you in accordance with our Privacy Statement.
10.6 Entire Agreement.
This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and TRU Kids with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update this Agreement from time to time, and will post the updated Agreement to the portal. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this Site will constitute your agreement to any new provisions within the revised Agreement.
10.7 Waiver; Severability.
Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
10.8 Assignment.
You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
10.9 Survival.
The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
10.10 Contact Us.
With questions, contact here or submit your question through this Site.
