BANANAGRAMS, INC. TERMS AND CONDITIONS OF USE

(Last Updated: October 2020)


Terms Of Sale

 

By using this web site, you agree to these and all other applicable terms, including our Terms & Conditions of Web Site Use and Privacy Statement. Please read them carefully.

 

PRODUCT AND SERVICE DESCRIPTIONS

 

We try to provide accurate depictions and descriptions of our products and services; however, we do not guarantee that descriptions, colors, dimensions, details or other content on our sites or in our services are accurate, complete, reliable, current or error-free. If a product offered on this site is not as described, your sole remedy is to return it in unused condition (except products that are not eligible for return). Furthermore, colors and other details that you see on your computer may vary from the actual product. We cannot guarantee that your computer will accurately display the details of our products and services.

 

BANANAGRAMS, ITS OFFICERS, DIRECTORS AND AGENTS ASSUME NO RESPONSIBILITY FOR ANY DAMAGES OR OTHER CONSEQUENCES DIRECTLY OR INDIRECTLY RELATED TO ANY DECISION. ACTIVITY OR FAILURE TO ACT THAT YOU TAKE BASED ON INFORMATION OR OTHER CONTENT PROVIDED ON OUR WEBSITE.

 

PRICING INFORMATION

 

We cannot confirm the price of an item until after you have placed your order. Pricing errors may occur on our site. We reserve the right to cancel any orders containing pricing errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice from us. We may, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation. Pricing for products described or advertised on Bananagrams site may differ from prices in our online or any retail stores (as well as third party online and retail stores) or through mobile applications.

 

NO PURCHASES BY MINORS

 

The shopping cart and checkout features of this site are intended to be used by persons who have reached the age of majority (18 in most U.S. states), according to the laws where they reside. If a minor orders a product or service through this site without parent or guardian permission, then the parent or guardian may return the product or service for a refund according to the returns and exchanges policy that relate to the order placed by their child.

 

ORDER ACCEPTANCE AND BILLING

 

By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item or items ordered.

 

You must provide truthful and accurate billing information. Providing any untruthful or inaccurate information may result in order cancellation. Before we accept and process an order, we may also request that you provide additional information. We reserve the right to refuse or cancel an order for any reason, including limitations on quantities available for purchase, inaccuracies, or errors in product or pricing information, or problems identified through our efforts to avoid fraud and/or account abuse.

  

 

We reserve the right to limit availability of, and/or to discontinue, any content, product, service, or other feature described or available on our site to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities and/or cancel orders of any content, product, service, or other feature that we provide.

 

If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We will contact you if all or any portion of your order is canceled or if additional information is required to accept your order. We may request a pre-authorization for some orders placed online with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a short period. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction.

 

QUANTITY LIMITS

 

In order to provide more consumers an enjoyable shopping experience on our site, or for any other reason, we reserve the right to limit quantities available for purchase. Quantity limits may be applied per order, per person or household, or to orders that use the same credit card, billing and/or shipping address, or share any other account or order attribute. We also reserve the right, at our sole discretion, to prohibit sales to dealers or resellers. For our purposes, "reselling" refers to purchasing or intending to purchase any product or products from us for the purpose of engaging in a commercial sale of the same with a third party.

 

Users who attempt to circumvent quantity limitations (e.g. by using multiple email addresses or accounts to order more than a stated limit or by placing multiple, excessive orders of the same product) may have orders denied and their accounts suspended from further activity.

 

PROMOTIONAL CODES

 

Promotional codes are limited in nature, void where prohibited, and may expire or discontinue with or without notice. Promotional codes may not be copied, sold, or applied to prior or future purchases. They are not redeemable for cash and are subject to cancellation or change at any time for any reason. Items eligible for promotional discounts may be limited to stock on hand, and rain checks may not be issued or honored.

 

RETURNS AND WARRANTIES

 

If you are not satisfied with an item that you have purchased, you may return the item within 30 days of delivery for a full refund of the purchase price, excluding the shipping, handling, gift wrap, and other charges. The item must be returned in good condition, in original packaging (whenever possible), and with all paperwork, parts and accessories to ensure credit. We do not take title to returned items until we receive them. Items designated as final sale may not be returned. Please review the information available at this site regarding our return policies and product warranty information.

 

Return quantities are limited to 5 of the same item per order, per person or household, or to orders that use the same credit card, billing and/or shipping address, or share any other account or order attribute.

 

SHIPPING AND PROCESSING

 

Unless otherwise explicitly stated, you are solely responsible for paying all shipping and processing charges relating to your purchases (including any product offered with a service) through this site. Shipping promotions offered on the Bananagrams.com site may not apply to all items and may be subject to other limitations.

 

Certain bulky or oversized items may include special shipping and handling charges in addition to shipping standard rates. Unless specifically stated on our site or in other valid offer terms, such special shipping and handling charges will be excluded from shipping promotions, and you will remain responsible for paying them.

 

All items purchased through this site are made pursuant to a shipment contract, which means that the risk of loss and title for such items pass to you upon our delivery to the carrier. Delivery to addresses outside the U.S. is not available for all items or to all addresses.

 

TAXES

 

You are responsible for paying all sales, use and other taxes, including any applicable duties, relating to any of your purchases of products or services from Bananagrams through this site.

 

Terms and Conditions of Website Use

 

Effective Date: October 1, 2020

 

The Website (defined below) is provided by Bananagrams, Inc. (collectively, "Bananagrams", "we", "our", or "us"). These "Terms and Conditions of Website Use" (this "User Agreement") govern your use of the Website, regardless of how you access or use it. By "Website", we mean the Internet domain address within which this User Agreement is posted and all features, applications, content, and downloads that are operated by us and that are available through or interact with it, and/or post links to this User Agreement.

 

IF YOU'RE UNDER THE AGE OF MAJORITY (which is 18 years old in most states), then your parent or guardian may be liable for some or all of your activities on the Website. Because of this, and because it’s prudent for your parent or guardian to be aware of your activities, including the websites that you visit, you should make your parent or guardian aware that you are using the Website – as this User Agreement and your use of the Website affect their legal rights and obligations.

 

IF YOU WANT TO USE THIS WEBSITE, then carefully read this User Agreement, as it constitutes a written agreement between you and Bananagrams and it affects your legal rights and obligations.

 

Each time you access and/or use the Website (other than to simply read this User Agreement), you agree to be bound by and comply with all of the terms of this User Agreement and any Additional Terms (defined below). Therefore, do not use the Website if you do not agree to all of the terms of this User Agreement and any Additional Terms.

 

The business realities associated with operating the Website are such that, without the limitations that are set forth in this User Agreement -- such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and our arbitration of certain disputes -- Bananagrams would not make the Website available to you.

 

Summary of Key Terms

 

It's important that you read this entire User Agreement; but here are some of the more significant terms that we want to bring to your attention:

 

Each time you use the Website, this User Agreement applies to your use. Any updates to it will apply to you; so you should check back frequently for any updates.

 

You may only use the Content on the Website in connection with your permitted activities on the Website – and not in an offline environment or on another website. You may not use the Website for commercial, political, or inappropriate purposes.

 

By using the Website, you will not obtain any ownership or intellectual property or other interest in it or any virtual or other items that may be used in connection with it.

 

Except as set forth in the NEW Privacy Statement that applies to the Website, you and Bananagrams do not have a confidential, fiduciary, or any other special relationship by virtue of your use of the Website or your communications to Bananagrams through or related to the Website.

 

Many types of disputes that may arise in connection with your access to and use of the Website may only be resolved by arbitration – which includes your waiver of a right to a jury trial.

 

Bananagrams is providing the Website to you on an “as is” basis, without any warranty of any kind, and Bananagrams’s liability to you in connection with your use of the Website is very limited. Many other limitations and disclaimers relate to your use of the Website.

 

In some instances, both this User Agreement and separate guidelines, rules, or terms of service or sale setting forth additional or different terms and/or conditions will apply to your use of the Website or to a service or product offered via the Website (in each such instance, and collectively, “Additional Terms”). To the extent there is a conflict between this User Agreement and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Please also review the terms of the Website’s NEW Privacy Statement.

 

 

Table of Contents

 

1.    Website Content, Ownership, Limited License, and Rights of Others.

 

2.    Content You Submit and Community Usage Rules.

 

3.    Website and Content Use Restrictions.

 

4.    Customer Service.

 

5.    Procedure for Alleging Copyright Infringement.

 

6.    Procedure for Alleging Infringement of Other Intellectual Property.

 

7.    Unsolicited Ideas and Materials Prohibited; No Confidential or Special Relationship With Bananagrams.

 

8.    Opening and Terminating Accounts.

 

9.    Links by You to the Website.

 

10.     Linked-To Websites; Advertisements; Dealings with Third Parties.

 

11.     Wireless.

 

12.     Dispute Resolution.

 

13.     Disclaimer of Representations and Warranties.

 

14.     Limitations of Liability of Bananagrams Parties.

 

15.     Waiver of Injunctive or Equitable Relief.

 

16.     General Provisions.

 

 

 

1.            Website Content, Ownership, Limited License, and Rights of Others.

 

Content. The Website contains a variety of: (i) materials and other items relating to Bananagrams and its products and services, and similar items from our licensors and other third parties, including all layout, information, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Website, and the compilation, assembly, and arrangement of the materials of the Website and any and all copyrightable material (including source and object code); (ii) trademarks, logos, trade names, service marks, and trade identities of various parties, including those of Bananagrams (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively "Content”).

  

Ownership. The Website (including past, present, and future versions) and the Content are owned or controlled by Bananagrams and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Website is the property of Bananagrams or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, patent, or other intellectual property rights and laws to the fullest extent possible. Bananagrams owns a copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Website.

 

Limited License. Subject to your strict compliance with this User Agreement and the Additional Terms, Bananagrams grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use via a standard web browser to enable display) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, an “Internet Device”) for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Website explicitly for you for use as part of your User-Generated Content (defined in Section 2(A)(i) below) (“Bananagrams Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the Bananagrams Licensed Elements are made available on the Website; but we and our licensors and certain other third parties, as the case may be, retain ownership of such Bananagrams Licensed Elements. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Bananagrams’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content and/or Bananagrams Licensed Elements, subject to certain Additional Terms.

 

Rights of Others. In using the Website, you must respect the intellectual property and other rights of Bananagrams and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Bananagrams respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Website, then please see Section 5 below.

 

2.         Content You Submit and Community Usage Rules.

 

A.    User-Generated Content.

 

i.   General. Bananagrams may now or in the future offer visitors to the Website the opportunity to post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Website (collectively, “submit”) messages, text, illustrations, files, images, graphics, photos, comments, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding Bananagrams Licensed Elements included therein, “User-Generated Content”). Bananagrams may do this through forums, blogs, message boards, social networking environments, social communities, email, and other communications functionality. Subject to the rights and license you grant in this User Agreement, you retain whatever legally cognizable right, title, and interest that you have in your User-Generated Content.

 

ii.    Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Web-site's posted NEW Privacy Statement or any Additional Terms, you agree that (a) your User-Generated Content will be treated as non-confidential and non-proprietary and will not be returned, and (b) Bananagrams does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon Bananagrams’s request, you will furnish us with any documentation necessary to substantiate these rights and verify your compliance with this User Agreement or any Additional Terms. You acknowledge that the Internet may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content.

 

iii.    License to Bananagrams of Your User-Generated Content. Except as otherwise described in any Additional Terms (such as a contest’s official rules), which will govern the submission of your User-Generated Content, you hereby grant to Bananagrams, and you agree to grant to Bananagrams, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User-Generated Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, manufacturing, and marketing products and/or services. In order to further effect the rights and license that you grant to Bananagrams to your User-Generated Content, you also hereby grant to Bananagrams, and agree to grant to Bananagrams, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 2(A)(iii).

 

iv.   Bananagrams's Exclusive Right to Manage All User-Generated Content. Bananagrams may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and Bananagrams may, in its sole discretion, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party. Bananagrams reserves the right to treat User-Generated Content on the Website as content stored at the direction of users for which Bananagrams will not exercise control except to block or remove content that comes to Bananagrams’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable to Bananagrams, or to enforce the rights of third parties or the content restrictions set forth below in the Rules (defined in Section 2(B) below) when notice of their violation comes to Bananagrams’s attention. Such User-Generated Content submitted by you or others need not, however, be maintained on the Website by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Website.

 

v. Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the state in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Generated Content, or you have a lawful right to submit the User-Generated Content and grant Bananagrams the rights to it that you are granting by this User Agreement and any Additional Terms, all without any Bananagrams obligation to obtain consent of any third party and without creating any obligation or liability of Bananagrams; (b) the User-Generated Content is accurate; (d) the User-Generated Content does not and, as to Bananagrams’s permitted uses and exploitation set forth in this User Agreement, will not infringe any intellectual property or other right of any third party; and (e) the User-Generated Content will not violate this User Agreement (including the Rules) or any Additional Terms, or cause injury or harm to any person.

 

vi.   Enforcement. Bananagrams has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, but you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at Bananagrams’s cost and expense, to which you hereby consent and irrevocably appoint Bananagrams as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

 

B. Community Usage Rules. As a user of the Website, these Community Usage Rules ("Rules") are here to help you understand the conduct that is expected of members of the Website's online communities ("Communities").

 

i. Nature of Rules. Your participation in the Communities is subject to all the terms in this User Agreement, including these Rules:

 

   Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. For example, your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Bananagrams. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Bananagrams as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)

 

   Speaking of Photos: No Photos, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Website, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their permission to submit them. Additionally, if the photo, video, or image includes a Bananagrams’s receipt of your Unsolicited Ideas and Materials is not an admission by Bananagrams of their novelty, priority, or originality, and it does not impair Bananagrams’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

 

   Act Appropriately. Be respectful of other's opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Website. Cursing, harassing, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.

 

   Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law. If you submit User-Generated Content that Bananagrams reasonably believes violates this paragraph, then we may take any legal action that we deem appropriate, in our sole discretion.

 

   Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. If you submit User-Generated Content that Bananagrams reasonably believes violates this paragraph, then we may take any legal action that we deem appropriate, in our sole discretion.

 

   Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company.

 

   Others Can See. We hope that you will use the Communities to exchange information and content and have discussions with other members. However, please remember that the Communities are a public forum and User-Generated Content that you submit on the Website within a Community will be accessible and viewable by other users. Do not submit personally identifiable information (e.g., first and last name together, password, phone number, address, credit card number, medical information, e-mail address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.

 

   Don't Share Other People's Personal Information. Your User-Generated Content must not reveal another person’s address, phone number, e-mail address, social security number, credit card number, medical information, financial information, or any other information that may be used to track, contact, or impersonate that individual, unless , and in the form and by the method, specifically requested by Bananagrams.

 

   Don't Damage the Website or Anyone's Computers or Other Internet Devices. our User-Generated Content must not submit viruses, trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Website or any computer or other Internet Device.

 

ii.    Your User-Generated Content. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. For example, your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to Bananagrams. (For example, if someone has taken a picture of you and your friend, and you submit that photo to Bananagrams as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.)

 

3.      Website and Content Use Restrictions.

 

Website Use Restrictions. You agree that you will not: (a) use the Website for any commercial or political purpose (including for purposes of advertising, soliciting funds, collecting product prices, and selling products); (b) use any meta tags or any other “hidden text” utilizing any Bananagrams trademarks or trade names; (c) engage in any activities through or in connection with the Website that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to Bananagrams; (d) reverse engineer, decompile, disassemble, reverse assemble, or modify any Website source or object code or any software or other products, services, or processes accessible through any portion of the Website; (e) engage in any activity that interferes with a user’s access to the Website or the proper operation of the Website, or otherwise causes harm to the Website, Bananagrams, or other users of the Website; (f) interfere with or circumvent any security feature of the Website or any feature that restricts or enforces limitations on use of or access to the Website, the Content, or the User-Generated Content; or (g) otherwise violate this User Agreement or any Additional Terms.

 

Content Use Restrictions. You also agree that, in using the Content (other than your User-Generated Content that does not contain any Bananagrams Licensed Elements): (a) you will not monitor, gather, copy, or distribute such Content (except as may be a result of standard search engine or activity or use of a standard Internet browser) on the Website by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (b) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (c) you will keep intact all trademark, copyright, and other intellectual property notices contained in such Content; (d) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (e) you will not make any modifications to such Content (other than to the extent of your permitted use of the Bananagrams Licensed Elements, if applicable); (f) you will not modify, reproduce, archive, sell, lease, rent, exchange, create derivative works from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate to any third party or on any third-party website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by this User Agreement or any Additional Terms or with the prior written consent of an officer of Bananagrams or, in the case of Content from a licensor, the owner of the Content; or (g) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.

 

Availability of Website and Content. Bananagrams may immediately suspend or terminate the availability of the Website and Content (and any elements and features of them) for any reason, in Bananagrams’s sole discretion, and without advance notice or liability (except as set forth in Section 9 below or any Additional Terms).

 

Reservation of All Rights Not Granted as to Content and Website. This User Agreement and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Website. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Bananagrams and its licensors and other third parties. Any unauthorized use of any Content or the Website for any purpose is prohibited.

 

4.         Customer Service

 

Bananagrams will not respond to consumer and other similar inquiries sent to the addresses in Section 5 below. If you have any customer service questions related to our products or services, then as a resource please use our website at the following addresses: bananagrams.com

 

5.               Procedure for Alleging Copyright Infringement

 

A. DMCA Notice. Bananagrams will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act (“DMCA”), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice that includes all of the following:

 

i. a legend or subject line that says: "DMCA Copyright Infringement Notice";

 

ii.    a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;

  

iii.    a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);

 

iv.   your full name, address, telephone number, and e-mail address;

 

v.   a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

 

vi.   a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and,

 

vii.    your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.

 

Bananagrams will only respond to DMCA Notices that it receives by mail, e-mail or facsimile at the addresses below:

 

By Mail:

Bananagrams, Inc.

145 Carolina Avenue

Providence, RI 02905

USA:

By E-Mail:

 

info@bananagrams.com

 

It is often difficult to determine if your copyright has been infringed. Bananagrams may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and Bananagrams may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

 

We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.

 

Without limiting Bananagrams’s other rights, Bananagrams may, in appropriate circumstances, terminate a repeat infringer’s access to the Website and any other website owned or operated by Bananagrams.

 

B. DMCA Counter-Notification. If access on the Website to a work that you submitted to Bananagrams is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:

  

i. a legend or subject line that says: "DMCA Counter-Notification";

 

ii.    a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);

 

iii.    a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;

 

iv.   your full name, address, telephone number, e-mail address, and the username of your account;

 

v.   a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the District of Rhode Island), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and

 

vi.   your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.

 

Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

 

If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than10 and not more than 14 business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Website. You should also be aware that we may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.

 

6.         Procedure for Alleging Infringement of Other Intellectual Property.

 

If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Website, then you may send us a written notice to one of the addresses set forth in Section 5 above that includes all of the following:

 

a. a legend or subject line that says: “Intellectual Property Infringement Notice”; b. a description of the intellectual property that you claim has been infringed; 

c. a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);

 

d. your full name, address, telephone number, and e-mail address;

 

e. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;

 

f. a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and,

 

g. your physical signature or, if sent within an email (rather than in a physical document or a digital document attached to an email), your name typed followed by “//s//”, which will serve as your electronic signature.

 

We will act on such notices in our sole discretion. Any user of the Website that fails to respond satisfactorily to Bananagrams with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.

 

7.            Unsolicited Ideas and Materials Prohibited; No Confidential or Special Relationship With Bananagrams.

 

Bananagrams employs a staff of designers to develop new ideas and, each year, Bananagrams solicits and receives product idea submissions from professional inventors with whom it has business relationships.

 

Because of this, in your communications with Bananagrams, please keep in mind that Bananagrams does not accept or consider any unsolicited ideas or materials for products or services, or even improvements to products or services, such as ideas, concepts, inventions, or designs for toys, games, videogames, books, scripts, screenplays, motion pictures, television shows, theatrical productions, music productions, or webisodes (collectively, “Unsolicited Ideas and Materials”). Therefore, you must not send to Bananagrams (even within any of your User-Generated Content that we may request), in any form and by any means, any Unsolicited Ideas and Materials. Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User-Generated Content and licensed to us as set forth above.

 

Except as otherwise specifically described in the Privacy Statement or any Additional Terms, your relationship with Bananagrams is not a confidential, fiduciary, or other type of special relationship and your Unsolicited Ideas and Materials, and anything else submitted by you (such as any questions, comments, answers, correspondence, postings, and the like) will be treated as non-confidential and non-proprietary User-Generated Content – regardless of whether you mark them “confidential”, “proprietary”, or the like. Bananagrams will not assume any responsibility, obligation, or liability for the receipt or non-receipt of any of the foregoing. Therefore, your decision to submit any Unsolicited Ideas and Materials to Bananagrams does not place Bananagrams in a position that is any different from the position held by members of the general public with regard to your Unsolicited Ideas and Materials.

 

Bananagrams finds that many submissions that it receives, including those from professional inventors, are already in the public domain; or are identical or substantially similar to products developed or in development by our own staff; or, for a host of many other reasons, are not novel or unique. So if, you send us any of your Unsolicited Ideas and Materials despite our request that you not do so, it’s likely they’re identical or substantially similar to ideas, concepts, and materials that, in the past, were developed by our staff or submitted to us by others. Likewise, in the future we may, without any reference to any of your Unsolicited Ideas and Materials, develop or receive from others ideas, concepts, and materials that are identical or substantially similar to your Unsolicited Ideas and Materials.

 

Bananagrams’s receipt of your Unsolicited Ideas and Materials is not an admission by Bananagrams of their novelty, priority, or originality, and it does not impair Bananagrams’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.

 

8.         Opening and Terminating Accounts.

 

In order to access or use some (or potentially all) of the features of the Website, you may have to become a registered user of the Website (or a portion of it). Depending upon your age, registration may require parental consent. The Website’s practices governing any resulting collection and use of your personal information are disclosed in its NEW Privacy Statement. Your decision to provide this information is purely voluntary and optional; however, if you elect not to provide it, then you may not be able to access certain Content or Communities or participate in certain features of the Website.

 

If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an email notification with a randomly generated initial password) and you agree that:

 

a. You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or email address for any other reason in our sole discretion.

 

b. You will provide accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete for as long as you use the features to which the registration relates.

 

c. You are solely responsible for all activities that occur under your account, password, and username, whether or not you authorize the activity (except to the extent that activities occur because someone gains access to our system without using your identifiers and password).

 

d. You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Internet Device so that others may not access any password protected portion of the Website using your name, username, or password. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security. (See Section 4 above.) You will not sell, transfer, or assign your account or any account rights.

 

We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates this User Agreement, any Additional Terms, or any legal requirement or law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability (except as may be set forth in Section 9 below or any Additional Terms).

 

9.            Links by You to the Website.

 

We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Website, so long as: (a) the links only incorporate text, and do not use any trademark graphics that are owned or licensed to Bananagrams, (b) the links and the content on your website do not suggest any affiliation with Bananagrams or cause any other confusion, and (c) the links and the content on your website do not portray Bananagrams or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is inappropriate for children or that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Bananagrams. Bananagrams reserves the right to suspend or prohibit linking to the Website for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.

 

10.            Linked-To Websites; Advertisements; Dealings with Third Parties.

 

A. Linked Websites; Advertisements. The Website may contain links, as part of third party ads on the Website or otherwise, to or from third-party websites (“Linked Websites”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with Bananagrams. Bananagrams may have no control over the content, operations, policies, terms, or other elements of Linked Websites, and Bananagrams does not assume any obligation to review any Linked Websites. Bananagrams does not endorse, approve, or sponsor any Linked Websites, or any third party content, advertising, information, materials, products, services, or other items. Bananagrams disclaims all liability in connection therewith. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use, and rules issued by the operator of the Linked Websites. Bananagrams disclaims all liability in connection therewith.

 

B. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Website (including on or

  

via Linked Websites or advertisements) are solely between you and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Bananagrams disclaims all liability in connection therewith.

 

11.            Wireless.

 

A. Wireless Features. The Website may offer certain features and services that are available to you via your wireless Internet Device. These features and services may include the ability to access the Website’s features and upload content to the Website, receive messages from the Website, and download applications to your wireless Internet Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Internet Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.

 

B. Terms of Wireless Features. You agree that as to the Wireless Features for which you are registered, we may send communications to your wireless Internet Device regarding us or other parties – unless you cancel your registration or opt-out in accordance with any procedure established by us or by law. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Website for Wireless Features, then you agree to notify Bananagrams of any changes to your wireless number (including phone number) and update your accounts on the Website to reflect the changes, or notify us when you wish to terminate your registration. (See Section 4 above.)

 

12.         Dispute Resolution.

 

Certain portions of this Section 13 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Bananagrams agree that we intend that this Section 13 satisfies the “writing” requirement of the Federal Arbitration Act.

 

A. First -- Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Website, the Content, your User-Generated Content, your Unsolicited Ideas and Materials, this User Agreement, or any Additional Terms (collectively, “Dispute”), or to any of Bananagrams’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 13(D) below), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 13(A). Your notice to us must be sent to: Bananagrams, Inc., 145 Carolina Avenue, Providence, Rhode Island 02905, U.S.A. For a period of 60 days from the date of receipt of notice from the other party, Bananagrams and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or

  

Bananagrams to resolve the Dispute or Excluded Dispute on terms with respect to which you and Bananagrams, in each party’s sole discretion, are not comfortable.

 

B. Forums for Alternative Dispute Resolution.

 

i. Arbitration.

 

If we cannot resolve a Dispute as set forth in Section 13(A) above within 60 days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 13(B). If we cannot resolve an Excluded Dispute as set forth in Section 13(A) above within 60 days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Bananagrams consent, in a writing signed by you and Bananagrams, Inc.’s General Counsel, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 13(B).

 

Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $100,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 15 years experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $100,000, or if Bananagrams elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this User Agreement and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Bananagrams do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 13(B)(i), then this paragraph and the remainder of this Section 13(B) will not apply to the Excluded Dispute.

 

If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and a legal officer of Bananagrams consents to in writing. The substantive practice area requirements for the arbitrator and the $100,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.

  

You can obtain AAA and JAMS procedures, rules, and fee information as follows:

 

AAA:

 

800.778.7879

 

http://www.adr.org/

 

JAMS:949.224.1810

 

http://www.jamsadr.com

 

ii.    Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this User Agreement (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees).

 

However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Bananagrams to pay a greater portion or all of such fees and costs in order for this Section 13 to be enforceable, then Bananagrams will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.

 

C. Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 13(A) ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.

 

D. Injunctive Relief. The foregoing provisions of this Section 13 will not apply to any legal action taken by Bananagrams to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Website, any Content, your User-Generated Content or Unsolicited Ideas and Materials and/or Bananagrams’s intellectual property rights (including such Bananagrams may claim that may be in dispute), Bananagrams’s operations, and/or Bananagrams’s products or services.

 

E. Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes (but not Excluded Disputes) in small claims court.

 

F. No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 13(B)(i) above holds that this restriction is unconscionable or unenforceable, then our agreement in Section 13(B) above to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 13(G) below.

 

G. Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 13(B) above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Bananagrams consent to the exclusive personal jurisdiction and venue of such courts for such matters.

 

13.         DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.

 

YOUR ACCESS TO AND USE OF THE WEBSITE IS AT YOUR SOLE RISK.

 

THE WEBSITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE", AND "WITH ALL FAULTS" BASIS. Therefore, to the fullest extent permissible by law, Bananagrams, Inc. and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, "Bananagrams Parties") hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:

 

a. the Website (including the Content and the User-Generated Content);

 

b. the functions, features, or any other elements on, or made accessible through, the Website;

 

c. any products, services, or instructions offered or referenced at or linked through the Website (except for any specific warranties provided in additional terms provided by a Bananagrams Party who is also a product manufacturer that are included with a product that you purchase from us);

 

d. security associated with the transmission of your User-Generated Content transmitted to Bananagrams or via the Website;

 

e. whether the Website or the servers that make the Website available are free from any harmful components (including viruses, trojan horses, and other technologies that could adversely impact your Internet Device);

 

f. whether the information (including any instructions) on the Website is accurate, complete, correct, adequate, useful, timely, or reliable;

 

g. whether any defects to the Website will be repaired; and

  

h. whether your use of the Website is lawful in any particular jurisdiction.

 

EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED IN ADDITIONAL TERMS PROVIDED BY A BANANAGRAMS PARTY WHO IS ALSO A PRODUCT MANUFACTURER THAT ARE INCLUDED WITH A PRODUCT THAT YOU PURCHASE FROM US, BANANAGRAMS PARTIES FURTHER HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.

 

Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable.

 

14.         LIMITATIONS OF LIABILITY OF BANANAGRAMS .

 

UNDER NO CIRCUMSTANCES WILL BANANAGRAMS BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:

 

a. the Website (including the Content and the User-Generated Content);

 

b. your use of or inability to use Website, or the performance of the Website;

 

c. any action taken in connection with an investigation by Bananagrams or law enforcement authorities regarding your access to or use of the Website;

 

d. any action taken in connection with copyright or other intellectual property owners or other rights owners;

 

e. any errors or omissions in the Website’s technical operation; or

 

f. any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction.

 

The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if Bananagrams was advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action of contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of God, telecommunications failure, or destruction of the Website).

 

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.

 

EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE TOTAL LIABILITY OF BANANAGRAMS PARTIES TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE WEBSITE AND YOUR RIGHTS UNDER THIS USER AGREEMENT, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID BANANAGRAMS IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLY THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY A MANUFACTURER OF A PHYSICAL PRODUCT.

 

15.   Waiver of Injunctive or Equitable Relief.

 

IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSSES, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE WEBSITE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, CONTENT, USER-GENERATED CONTENT, UNSOLICITED IDEAS AND MATERIALS, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, OR CONTROLLED BY BANANAGRAMS (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF BANANAGRAMS.

 

16.   General Provisions.

 

A. Updates to User Agreement. Bananagrams reserves the right to modify this User Agreement and any Additional Terms, at any time without prior notice (“Updated Terms”). You agree that we may notify you of the Updated Terms by posting them on the Website so that they are accessible via a link on the Website, and that your use of the Website after we post the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review this User Agreement and any Additional Terms on a regular and frequent basis. The Updated Terms will be effective as of the time that Bananagrams posts them on the home page of the Website, or such later date as may be specified in them.

 

B. Bananagrams's Consent or Approval. As to any provision in this User Agreement or any Additional Terms that grants Bananagrams a right of consent or approval, or permits

 

Bananagrams to exercise a right in its “sole discretion”, Bananagrams may exercise that right in its sole and absolute discretion. No Bananagrams consent or approval may be deemed to have been granted by Bananagrams without being in writing and signed by an officer of Bananagrams.

 

C. Applicable Law. This User Agreement and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the State of Rhode Island, without regard to its conflicts of law provisions.

 

D. Indemnity. You agree to, and you hereby, defend, indemnify, and hold Bananagrams harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against Bananagrams, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with: (i) your User-Generated Content; (ii) your use of the Website and your activities in connection with the Website; (iii) your breach or anticipatory breach of this User Agreement or any Additional Terms; (iv) your violation or anticipatory violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities in connection with your use of the Website or your activities in connection with the Websites; (v) information or material transmitted through your Internet Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) Bananagrams’ use of the information that you submit to us (including your User-Generated Content); (viii) your purported “ownership” of any usage subscriptions or virtual items; and (ix) the increase or decrease in “value” or loss of usage subscriptions or virtual items if Bananagrams deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by Bananagrams in the defense of any Claim and Losses. Notwithstanding the foregoing, Bananagrams retains the exclusive right to settle, compromise, and pay any and all Claims and Losses. Bananagrams reserves the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of Bananagrams.

 

E. Operation of Website; Availability of Products and Services; International Issues. Bananagrams controls and operates the Website from its offices in the U.S.A. Bananagrams makes no representation that the Website is appropriate or available for use beyond the U.S.A. If you use the Website from other locations, you are doing so of your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. Subject to the terms of this User Agreement, we reserve the right to limit the availability of, restrict access to, or discontinue the Website and/or any content, program, product, service, or other feature described or available on the Website to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. Some content, programs, services, or features may be available on this Website only on a subscription or fee basis. You and we disclaim any application to this User Agreement of the United Nations Convention on Contracts for the International Sale of Goods.

 

F. Export Controls. Software related to or made available by the Website may be subject to export controls of the U.S.A. No software from the Website may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services (which, as of the effective date of this User Agreement, includes Cuba, North Korea, Iran, Sudan and Syria), or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). By downloading any software related to the Website, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.

 

G. Severability; Interpretation. If any provision of this User Agreement, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from this User Agreement or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of this User Agreement or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in this User Agreement or any Additional Terms, the word will be deemed to mean “including, without limitation”.

 

H. Communications. When you communicate with us electronically, such as via e-mail and text message, you consent to receive communications from us electronically. Please note that, except as set forth in Section 5 above, we are not obligated to respond to inquiries that we receive. 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.

 

I. Investigations; Cooperation with Law Enforcement; Termination; Survival. Bananagrams reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Website security or its information technology or other systems or networks, (ii) investigate any suspected breaches of this User Agreement and any Additional Terms, (iii) investigate any information obtained by Bananagrams in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of this User Agreement and any Additional Terms, and (vi) discontinue the Website, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to Bananagrams under this User Agreement or any Additional Terms. Upon suspension or termination of your access to the Website, or upon notice from Bananagrams, all rights granted to you under this User Agreement or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Website. The provisions of this User Agreement and any Additional Terms, which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to Bananagrams in this User Agreement, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.

 

J. Assignment. Bananagrams may assign its rights and obligations under this User Agreement and any Additional Terms, in whole or in part, to any party at any time without any notice. This User Agreement and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Bananagrams.

 

K. No Waiver. Except as expressly set forth in this User Agreement or any Additional Terms, (i) no failure or delay by you or Bananagrams in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of this User Agreement or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.

"Today I want to talk to you about BANANAGRAMS®. It’s a really fun game between you and your friends …."

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- Kelly Clarkson

"Give it up for BANANAGRAMS®!"

- Ed Helms

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