Terms and Conditions
Discover Talking Pen, LLC
Terms and Conditions
Discover Talking Pen, LLC ("Company," "we," or "us") provides access to information through our website accessible at the URL https://www.DiscoverTalkingPen.com/ (the “Site”) and we may provide the ability to use certain functionalities of the Site or provide services of various kinds (the "Services"). The Site and Services are made available to you only under the following terms and conditions (the "Terms").
PLEASE READ THE TERMS CAREFULLY. BY USING THE SITE OR SERVICES, YOU ACKNOWLEDGE AND REPRESENT THAT (i) YOU HAVE READ THESE TERMS, (ii) UNDERSTAND THEM, (iii) AGREE TO BE BOUND BY THEM, AND (iv) YOU ARE LEAST 18 YEARS OLD. NOTE THAT YOU MAY NOT USE THE SITE OR SERVICES UNLESS YOUR ARE AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, WE ARE UNWILLING TO GRANT YOU ACCESS TO THE SITE OR THE SERVICES.
I. ACCESS TO OUR ONLINE SERVICES AND TOOLS
In order to use certain features of the Site or Services, you must register for an account with Company (“Account”) and provide certain information about yourself as prompted by the Site registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
B. Access to Features of Online Services
Subject to these Terms, we grant you a limited, non-exclusive, nontransferable personal license to (a) access and use the Site and Services and (b) download, install and operate any software (in object code form only), scripts and other content that we may from time to time have specifically identified within the Site as available for download ("Downloadable Tools") (if any). The Downloadable Tools are deemed part of the “Service”. Your use of any Downloadable Tools may be subject to additional terms and conditions that accompany such Downloadable Tools.
C. General Restrictions on Use
The rights granted to you by these Terms will remain in force only for so long as these Terms remain in effect. You may not rent, transfer, assign, commercially exploit, resell or sublicense access to the Service to any third-party. You may use the Site and the Services (including the Downloadable Tools) only for your personal, non-commercial purposes. You further agree not to combine or integrate the Site and the Services (including the Downloadable Tools) with hardware, software or other technology or materials not provided by us. You may not modify or create any derivative product based on the Site, the Site and the Services (including the Downloadable Tools). You may not decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site and the Services (including the Downloadable Tools) is compiled or interpreted, and nothing in these Terms should be interpreted as granting you any right to obtain or use source code. Except as expressly stated herein, no part of the Site or Services (including the Downloadable Tools) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. You agree not to use the Site and the Services (including the Downloadable Tools) to: (a) violate any local, state, national or international law; (b) stalk, harass or harm another individual; (c) collect or store personal data about other users; (d) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (e) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services. Without our written consent, you may not (i) use any high volume, automated, or electronic means to access the Services (including, without limitation, robots, spiders or scripts); or (ii) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You promise that any information about yourself that you voluntarily provide to us will be true, accurate, complete and current.
D. Use of Third-Party Offerings
You may be able to access websites, content, products or services provided by third-parties through links that are made available on the Site. We refer to all such websites, content, services and products as “Third-Party Offerings.” For example, we may permit third parties to advertise their products and services on the Site, and those advertisements may contain links to the website(s) of the advertisers. If you elect to use such Third-Party Offerings, you understand that your use of them will be subject to any terms and conditions required by the applicable third-party provider(s). You understand that we are not the provider of, and are not responsible for, any such Third-Party Offerings and that these Terms do not themselves grant you any rights to access, use or purchase any Third-Party Offerings.
As between you and us, we and/or our vendors and suppliers, as applicable, retain all right, title and interest in and to the Site and the Service (including the Downloadable Tools), and all related intellectual property rights, other than User Content. Company and its suppliers reserve all rights not granted in these Terms. Unless you first obtain the copyright owner’s prior written consent, you may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the Site or the Services. If you provide Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
Copyright © 2018, Discover Talking Pen, LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site or Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
II. USER CONTENT
A. User Content.
“User Content” means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., content in the user’s profile, photographs, or other postings). You are solely responsible for your User Content and assume all risks associated with use of your User Content. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content (and not Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.
You hereby grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license and authorization to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (including your and/or your child’s name, voice, photograph, and likeness) and to grant sublicenses of the foregoing, for the purposes of including your User Content in the Site, Services, Company’s other products and services, and Company’s marketing materials or endorsements. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
C. Acceptable Use Policy.
The following sets forth Company’s “Acceptable Use Policy”: You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party; (v) that constitutes a computer virus, worm, or any software intended to damage or alter a computer system or data; or (vi) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.
We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Company Account, and/or reporting you to law enforcement authorities.
E. Other Users.
Each Site or Service user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.
Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO 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.”
TERMS AND CONDITIONS OF SALE
A. CERTAIN PRODUCT DISCLAIMERS.
WARNING: CHOKING HAZARD – SMALL PARTS. NOT FOR CHILDREN UNDER 3 YEARS. YOU ACKNOWLEDGE THAT THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE BY CHILDREN UNDER THE AGE OF THREE (3) AND MAY CONTAIN SMALL PARTS. IN ADDITION TO ALL OTHER LIMITATIONS AND DISCLAIMERS IN THIS AGREEMENT, COMPANY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, IN WHOLE OR IN PART, FOR ANY CLAIMS, LIABILITY, DAMAGES, LOSS OR COSTS ARISING FROM SUCH USE.
B. Products and Pricing.
All products listed on the Site (“Products”), their descriptions, and their prices are each subject to change. Company reserves the right, at any time, to modify, suspend, or discontinue the sale of any Product with or without notice. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuance of any Product (except as set forth in Section V). In the event a Product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or Product information received from our suppliers, we shall have the right, prior to the acceptance of your order or pre-order (as described below), to decline or cancel any such order or pre-orders, whether or not the order or pre-order has been confirmed and/or your credit card charged. If your credit card has already been charged for the order or pre-order and we cancel your order or pre-order, we shall immediately issue a credit to your credit card account in the amount of the charge.
C. Order or pre-orders.
When you make an order or a pre-order, you are making an offer to purchase, and such offer is subject to our acceptance. Your receipt of an order or a pre-order confirmation from us does not signify our acceptance of your order or pre-order, nor does it constitute confirmation of our offer to sell. We reserve the right at any time after receipt of your order or pre-order to accept or decline or cancel your order or pre-order (in whole or in part) for any reason. We may require additional verifications or information before accepting any order or pre-order. Your order or pre-order is not accepted until we send you shipping information for the order or pre-order (or the accepted portion thereof). Notwithstanding the foregoing, you agree that, if we cancel all or a part of your order or pre-order, your sole and exclusive remedy is either that (a) we will issue a credit to your credit card account in the amount charged for the cancelled portion (if your credit card has already been charged for the order or pre-order) or (b) we will not charge your credit card for the cancelled portion of the order or pre-order.
D. Payment Terms.
For each Product you order or pre-order on the Site, you agree to pay the price applicable for the Product as of the time you submitted your order or pre-order (“Product Price”), the delivery fees for the delivery service you select (“Delivery Fees”), and any applicable Taxes (defined below). If you order or pre-order a subscription to a Product (with a monthly term, or a term of 6 months or twelve months) that auto-renews (“Subscription”), then you agree to pay the applicable Product Price, Delivery Fees, and Taxes upon each auto-renewal date, until you terminate your Subscription in accordance with the directions on the Site. We reserve the right to change the timing of our billing, in particular, if your Payment Method has not successfully settled, your original purchase date is within 15 days of your auto-renewal date, there are unforeseen delays that hinder our ability to ship your product or there are changes to your account or Subscriptions. Please note a Subscription to a brand or product may be switched from one brand to another at your request or automatically by us as a convenience to you in the event you have received all available Products for a brand. If your Subscription is automatically switched from your current brand (an “Updated Subscription”) to another brand you will be notified via email. You may decline an Updated Subscription in order to continue receiving Product for your current brand by contacting us at support@DiscoverTalkingPen.com . Please also note that if your Subscription includes a discounted Product Price for a promotional period, once the promotional period expires, your Subscription will renew at the full Product Price. As such, if you purchase a Subscription, until such time as you terminate your Subscription in accordance with the directions on this site, you hereby authorize, agree and assent to the Company automatically billing your credit card submitted as part of the order or pre-order process for such amounts that are due. You will be solely responsible for payment of all taxes (other than taxes based on Company’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the Product purchase (“Taxes”) not withheld by Company, including, without limitation, all Product purchased pursuant to any Updated Subscription. All payments are non-refundable (except as expressly set forth in this Section II). Without limiting other remedies, we reserve the right to charge a late fee on all past due payments equivalent to the lesser of one and a half percent (1.5%) per month on the unpaid balance or the highest rate allowed by law. You agree to pay for all collection costs, attorneys’ fees, and court costs incurred in the collection of past due amounts.
E. Shipping Policy.
Products will be shipped in accordance with the shipping method you selected when placing the order or pre-order. Any delivery dates provided by Company are estimates. Company reserves the right to make deliveries in installments. Company will send you an email when your order or pre-order has shipped and you may review your order or pre-order and shipping information on your Account.
F. Cancellation Policy.
You can cancel a monthly or free trial subscription anytime after the first 3 books ship. Please cancel by emailing us at email@example.com by 10 business days before your billing date if you do not wish to receive that month’s book or product. Gift subscriptions are not eligible for cancellation - these subscriptions will expire after the original term is complete. Auto-renewing subscriptions (pay every 6 or 12 months) can be turned “off” at any time - meaning we will cancel the next automatic renewal of the subscription (instead, the subscription will expire).
To turn “off” your subscription’s auto-renewal or to cancel, please email us at support@DiscoverTalkingPen.com.
G. Return Policy.
(i) Return Policy. Unless the Product information page states that a Product is a Final Sale, Company will accept returns only in accordance with the Return Procedures below. If a Product is a Final Sale, then the sale is final and no returns will be accepted. Provided that Company confirms that your Product was not a Final Sale and was returned in accordance with the Return Procedures below, your sole and exclusive remedy is that we will issue you a refund in the amount charged for the applicable Product; provided that the amount will not include the applicable Delivery Fee, which is nonrefundable. If store credit is offered, it may only be used for future purchase of Products on the Site (excluding gift cards) and are not transferable.
(ii) Exchanges. We do not accept any Product exchanges.
(iii) Damaged Products. If the Product arrives damaged or not substantially as described on the Product information page (“Damaged Product”), Company will accept returns for a full refund only in accordance with the Return Procedures below. Provided that Company confirms that your Product was a Damaged Product and was returned in accordance with the Return Procedures below, your sole and exclusive remedy is that (a) we will issue a refund to your credit card in the amount charged for the Damaged Product (if your credit card has already been charged for the Product) or (b) we will not charge your credit card for the Damaged Product. The refunded amount will include the applicable Delivery Fee.
(iv) Return Procedures. The following sets forth the required “Return Procedures”: All returns must be made within 14 days after the Product shipment date. All returned Products must be unused and returned in accordance with the instructions received from contacting customer service at support@DiscoverTalkingPen.com. You are solely responsible for the cost of shipping the returned Product. All Products not returned in accordance with the Return Procedures shall be sent back to you and no credit or refund will be issued.
Please read the official rules that accompany each special offer, coupon, discount, contest and sweepstakes that we may offer or conduct. Special offers, coupons, or discounts cannot be used in conjunction with other offers. Limit one promotion per order or pre-order.
IV. DISCLAIMERS, LIMITATIONS AND EXCLUSIONS OF LIABILITY
A. Limited Warranties
THE SERVICE, THE SITE (INCLUDING THE DOWNLOADABLE TOOLS), ALL INFORMATION, CONTENT, MATERIALS AND SERVICES RELATED TO THE FOREGOING, AND THE PRODUCTS (EXCEPT AS SET FORTH IN SECTION III. F) ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM INTEGRATION AND ACCURACY OF DATA. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. WE AND OUR AFFILIATES DO NOT WARRANT THAT YOUR USE OF THE SITE OR SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE. THE SUBMISSION OF ANY USER CONTENT AND THE DOWNLOAD OR UPLOAD OF ANY MATERIAL THROUGH THE OUR SERVICE AND/OR SITE IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL OR FROM RELIANCE UPON THE SITE OR SERVICES, AND YOU ARE ADVISED TO MAINTAIN OFFLINE BACKUP COPIES OF ALL USER CONTENT. WE ARE NOT THE PROVIDER OF, AND MAKE NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS. WE DO NOT GUARANTEE THE SECURITY OF ANY INFORMATION TRANSMITTED TO OR FROM THE SITE OR SERVICE; AND YOU AGREE TO ASSUME THE SECURITY RISK FOR ANY INFORMATION YOU PROVIDE USING THE SITE OR SERVICE.
NO REPRESENTATION OR WARRANTY IS MADE THAT THE SITE OR SERVICES PROVIDE COMPREHENSIVE OR ACCURATE INFORMATION. WE RESERVE THE RIGHT TO FILTER, MODIFY OR REMOVE CONTENT, MEDIA, INFORMATION OR ANY OTHER MATERIAL FROM THE SITE OR SERVICES AND FROM THE OUTPUT OF THE SITE OR SERVICES. YOU UNDERSTAND THAT WE HAVE DEVELOPED OUR TECHNOLOGIES TO FIND INFORMATION THAT WE BELIEVE WILL BE MOST RELEVANT AND INTERESTING TO YOU. ACCORDINGLY, WE MAY IN OUR DISCRETION FILTER OUT LINKS TO CONTENT AGGREGATORS. SEARCH ENGINES OR OTHER ONLINE SERVICES WHOSE TECHNOLOGIES AND SERVICES, IN OUR OPINION, ARE INCONSISTENT WITH THESE OBJECTIVES.
B. Limitation Of Liability
USE OF OUR SERVICE, THE SITE (INCLUDING ANY DOWNLOADABLE TOOLS), AND/OR THE PRODUCTS ARE AT YOUR OWN RISK. IN NO EVENT WILL WE OR OUR AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES IN CONNECTION WITH THESE TERMS, THE SERVICE, THE SITE, OR THE PRODUCTS, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF WE WERE ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS, THE SERVICE, THE SITE, OR THE PRODUCTS EXCEED THE GREATER OF (1) FIFTY DOLLARS (U.S. $50.00) OR (2) THE AMOUNTS YOU HAVE PAID TO COMPANY IN THE PRIOR 6 MONTHS HEREUNDER.
YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND US RELATING TO THE PROVISION OF THE SITE, THE SERVICE (INCLUDING ANY DOWNLOADABLE TOOLS), AND THE PRODUCTS TO YOU, AND WE WOULD NOT PROVIDE THE SITE OR SERVICE OR PRODUCTS TO YOU WITHOUT THIS LIMITATION.
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES AND LIABILITY CONTAINED IN THESE TERMS DO NOT AFFECT OR PREJUDICE THE STATUTORY RIGHTS OF A CONSUMER, I.E., A PERSON ACQUIRING GOODS OTHERWISE THAN IN THE COURSE OF A BUSINESS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES AND REMEDIES CONTAINED IN THESE TERMS SHALL APPLY TO CUSTOMER ONLY TO THE EXTENT SUCH LIMITATIONS OR EXCLUSIONS AND REMEDIES ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE CUSTOMER IS LOCATED. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE PRODUCT, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND, AT OUR OPTION, DEFEND OUR COMPANY (INCLUDING OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, SUPPLIERS AND ANY THIRD-PARTY INFORMATION PROVIDERS) FROM AND AGAINST ALL DAMAGES, CLAIMS, DEMANDS, LIABILITIES, COSTS, AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES, RESULTING FROM ANY VIOLATION OF THESE TERMS OR APPLICABLE LAW OR YOUR USER CONTENT.
V. TERM AND TERMINATION
These Terms will become effective and binding when you use the Site or Service, when you voluntarily provide any information about yourself to us, or when you indicate your agreement by following any instructions we place on the Site (such as buttons labeled “I Agree”) (which ever occurs first). We reserve the right to terminate these Terms, your Account, and your access to the Site and the Service at any time without notice. You may delete your Account at any time, for any reason, by following the instructions on the Site. If we have suspended or terminated these Terms, your Account, the Site, or the Service other than for your breach of these Terms, we will refund you a pro-rata share of any amounts you have pre-paid for a Subscription to the Service (if any). You understand that any termination of your Account involves deletion of your User Content associated therewith from our live databases. Your rights under these Terms will automatically and immediately terminate if you fail to comply with your promises and obligations stated in these Terms. The provisions of sections I.C, I.D, I. E, II, III.A., IV, VI, and VII will survive the termination of these Terms.
VI. COPYRIGHT POLICY
Company respects the intellectual property of others and asks that users of our Site and Services do the same. In connection with our Site and Services, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Site and Services who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Site and Services, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
1. your physical or electronic signature;
2. identification of the copyrighted work(s) that you claim to have been infringed;
3. identification of the material on our services that you claim is infringing and that you request us to remove;
4. sufficient information to permit us to locate such material;
5. your address, telephone number, and e-mail address;
6. a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
7. a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Company is:
Designated Agent: Cecilia Yiu
Address of Agent: PO Box 251, De Soto, Iowa 50069
VII. MISCELLANEOUS MATTERS
A. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.
Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
• Applicability of Arbitration Agreement. All claims and disputes in connection with the Terms or the use of any product or service provided by Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
• Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS, Inc. (formerly Judicial Arbitration and Mediation Services), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”). The JAMS rules governing the arbitration are available online at www.jamsadr.com or by calling JAMS at 1-800-352-5267. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
• Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected as provided above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.
• Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Company.
• Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Company in any state or federal court in a suit to vacate or enforce an arbitration award, or under paragraph 11 of this Arbitration Agreement, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
• Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Dallas County, Iowa.
• Confidentiality. No part of the procedures shall be open to the public or the media. All evidence discovered or submitted at the hearing is confidential and may not be disclosed, except by written agreement of the parties, pursuant to court order or unless required by law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
• Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
• Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
• Small Claims Court. Notwithstanding the foregoing, either you or Company may bring an individual action in small claims court.
• Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Dallas County, Iowa, for such purpose.
B. Governing Law
These Terms shall be governed by the laws of the State of Iowa without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction.
C. Modifications to Terms
D. Modifications to Services.
We reserve the right to modify the Site and/or Services at any time without notice. If you object to any changes to the Site or Services, your sole recourse will be to cease using the Site and Service, terminate your Subscription for a pro-rata refund of any amounts you have pre-paid for the Subscription (if any), or not renew the Subscription (if applicable). Continued use of the Site or Services following posting of any such changes will indicate your acknowledgement of such changes and satisfaction with the Services as so modified. We also reserve the right to discontinue the Site and/or Services at any time without notice. We will not be liable to you or any third-party should we exercise our right to modify or discontinue the Site or the Services, except and if otherwise expressly set forth in Section V.
E. General Terms
You agree to comply with all laws, rules and regulations that apply to your use of the Site, the Services (including the Downloadable Tools) and the Products. Any delay or failure by us to exercise or enforce any right or provision of these terms will not constitute a waiver of such right or provision. If any provision of these terms is found by a court of competent jurisdiction to be invalid, you agree that the court should endeavor to give effect to the intentions reflected in the invalid provision, and the other provisions of these Terms shall remain in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word including means including without limitation. These Terms constitute the entire agreement between you and us with regard to the matters described above. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Contact Information: Support@DiscoverTalkingPen.com
Your Personal Information may be processed in the country in which it was collected and in other countries, including the United States, where laws regarding processing of Personal Information may be less stringent than the laws in your country.
What Information Do We Collect?
“Personal Information” means data that allows someone to identify or contact you, including, for example, your name, address, telephone number, e-mail address, as well as any other non-public information about you that is associated with or linked to any of the foregoing data. “Non-Personal Information” means data that is not associated with or linked to your Personal Information; Non-Personal Information does not, by itself, permit the identification of individual persons. We collect Personal Information and Non-Personal Information, as described below.
Company collects Personal Information as required to offer Services, as listed in the Terms and Conditions, as voluntarily provided by you in the course of correspondence or registration, and as otherwise identified below. In addition, we collect certain information which cannot be used to personally identify any user, such as anonymous, aggregate or statistical data.
In order to use some Services, you may be required to complete the applicable registration form accessible on the Site. All persons who register are referred to as “Registered Users.” Some Services may not require registration. Company collects and maintains a record of all data provided through such registration forms, e.g. your name, e-mail, mailing addresses, and password and information about your child, e.g., your child’s name, birthday, interests, and gender. For example, individual users who desire to order or pre-order a Product (as defined in the Terms and Conditions) must provide certain contact information, shipping information, billing information, and financial information (e.g., a credit card number and expiration date) (which will be collected by us or our third party payment processing service providers).
For some Services, each Registered User may be provided a unique username and password that enable access to the Service. We may track the use of those usernames and passwords in order to collect and maintain records of individual transactions conducted through the Services by Registered Users, and those records may be associated with each Registered User’s individual account profile within the Company system.
We also collect other types of Personal Information that you provide to us voluntarily, such as your operating system and version, product registration number, and other requested information if you contact us via e-mail regarding support.
We also collect and maintain records of information that you voluntarily provide to us. For example, we may ask you to participate in a survey, and may ask you to provide Personal Information, such as age, gender or other demographic data. If you enter into a contest or promotion on our Site, we will collect the information your provide to participate in the contest or promotion. If you provide us feedback or contact us via e-mail, we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply. When you post messages on the message boards of our Site, the information contained in your posting will be stored on our servers and other users will be able to see it. However, unless such information is necessary for the Service or required by the Terms and Conditions, we do not require you to provide such information to us.
We collect additional information through the Site and the Service that is not associated with any online account or registration information, and that cannot be used to personally identify you. Non-Personal Information ordinarily includes aggregate, summary, or other anonymous data, and may include, by way of example, statistics regarding popularity of particular pages within the Site, or information regarding types of Internet browsers used by Registered Users.
“Cookies” are small files placed on a user’s computer by a Web site in order to facilitate use of that Web site. For example, a cookie may contain information about a user’s preferences, so that the Web site automatically complies with those preferences whenever the user visits that Web site. When using the Service, we may create “cookies” on your computer for purposes of facilitating and maintaining your current user session, and may collect Personal Information using those cookies in order to enable Company to identify you in connection with the Service and to track use of the Service for purposes consistent with this policy. To make our Site and Services more useful to you, our servers (which may be hosted by a third-party service provider) collect information from you, including your browser type, operating system, Internet Protocol (IP) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session), domain name, and/or a date/time stamp for your visit.
The Site is not directed to children and children are not eligible to use our Services. Protecting the privacy of children is very important to us. We do not collect or maintain Personal Information from people we actually know are under 18, and no part of our Site or Service is designed to attract people under 18. If we later learn that a user is under 18, we will take steps to remove that user's Personal Information from our databases and to prevent the user from utilizing the Site and the Service.
If you decide to invite a third party to create an Account, we will collect your and the third party’s names and e-mail addresses in order to send an e-mail and follow up with the third party. You or the third party may contact us at support@DiscoverTalkingPen.com to request the removal of this information from our database.
Use and Disclosure of Collected Information
Company uses information collected from the Site and Service in several ways, as outlined in this policy. For example, we use Personal Information as needed to provide Site and Services, to create Accounts, and to communicate with Registered Users. We also use both Personal Information and Non-Personal Information when evaluating ways to improve the Site and the Service. As further described below, in limited circumstances we may disclose collected information, including Personal Information, to certain third parties in connection with providing Services or as required by law. We will not use or disclose collected information in ways different from what is described in this policy unless otherwise required by law.
We also use information collected through the Site and the Service to communicate with Registered Users from whom such information was collected in order to provide promotional materials about us. However, unlike communications which are necessary to provide Services (“Necessary Communications”), promotional communications are optional (“Optional Communications”), and Company will refrain from sending that kind of information to you if you inform us that you prefer not to receive them, as described in more detail below.
Company uses Non-Personal Information in a variety of ways, including, by way of example, to evaluate the performance of the Site and Service and the general preferences of users, or to generate anonymous statistics for our benefit or for our business partners. Because Non-Personal Information is entirely anonymous, and therefore can never be used by us to identify you, this policy does not limit our ability to use or disclose Non-Personal Information. We may create Non-Personal Information records from Personal Information by excluding information (such as your name) that make the data personally identifiable to you.
If we collect information through the Site and/or the Service that you provide to us voluntarily through online forms or surveys, through e-mail communications or by other means, we will treat that information as described above, as applied to both Personal Information and Non-Personal Information.
We may use third-party advertising companies to serve ads when you visit our Site. These companies may use information (not including your name, address, email address, or telephone number) about your visits to this and other websites in order to provide advertisements about goods and services of interest to you. If you would like more information about this practice and to know your choices about not having this information used by these companies, go to www.discovertalkingpen.com.
If you enter and win a contest or other promotion, you expressly consent to (a) Company providing your Personal Information (e.g., your name and address) to the third party providing the prize for the contest or other promotion, solely to provide you such prize and (b) Company publicly disclosing your name and the fact that you won the contest or promotion. If we will be disclosing additional Personal Information in connection with a contest or other promotion, we will disclose that to you in a separate notice prior to your entering the contest or other promotion. By entering such contest or other promotion, you expressly consent to such disclosures.
Choice, Opting-In and Opting-Out Regarding Optional Communications
Because we respect your privacy, we may from time to time provide certain opportunities for you to indicate your preferences regarding how we use and/or disclose information collected about you from the Site and the Service. If you are an Registered User, by indicating your preferences in the online profile your create, which includes your registration information and other information voluntarily provided by you (your “Registration Profile”), you will be able to inform us whether you wish to receive certain Optional Communications from us.
We do not maintain responsibility for the manner in which third parties use or further disclose Personal Information collected from you through the Site or Services, after we have disclosed that information to those third parties. However, we do require our third-party service providers to promise not to use such information except as necessary to provide the relevant services to us. If you do not want Company to use or disclose Personal Information collected about you in the manners identified in this policy as Necessary Communications and/or Necessary Disclosures, you may not use the Site or any Service.
The Site contains links to other Web sites. Please be aware that we are not responsible for the privacy practices or the content of such other Web sites. We encourage our users to read the privacy statements of each and every Web site they visit. This privacy statement applies solely to information collected by us through the Site.
Access To Personal Information Collected From You
Registered Users may access their Registration Profiles at any time to update Personal Information contained within that Registration Profile. Subsequent uses or disclosures of information by us will reflect those changes, but we have no ability to update any information previously disclosed to any third party.
You may request deletion of your Personal Information by us, but please note that we may be required to keep this information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete any information, it will be deleted from the active database, but may remain in our archives.
The Site has security measures in place to protect against the loss, misuse and unauthorized alteration of Personal Information in Company's possession and control. For example, whenever the Service requests that Registered Users provide sensitive information, that information is encrypted with industry standard encryption techniques. When you are viewing a secure page within the Site, such as our checkout form, an icon of a padlock will appear as “locked” at the bottom of web browsers such as Microsoft Internet Explorer, but the same icon will appear as "un-locked" when the user is merely “surfing.” We currently use an encryption program known as “SSL,” or “Secure Sockets Layer.” To learn more about SSL, go to https://www.ssl.com/. Credit card authorization requests are sent using the same encryption technology.
Furthermore, access to Personal Information is physically restricted within our own offices, so that only certain of our employees are granted access to information as appropriate to perform specific jobs and tasks (e.g., performing customer service).
Please be aware that, although we endeavor to provide security for information in our possession and control, no security system can prevent against all potential security breaches, and we bear no liability for uses or disclosures of Personal Information or Non-Personal Information arising in connection with the theft thereof. Likewise, Registered Users are responsible for safeguarding the confidentiality of passwords to any Services, and we bear no liability for access to, or use or disclosure of, Personal Information, if such access, use or disclosure arises in connection with the theft or disclosure (whether intentional or negligent) of a password.
If you have any questions about our security measures, you can click here to contact us.
Changes to This Policy
Warranty, Return and Refund Policies
The Discover Talking Pen Limited Warranty
Congratulations on your purchase of The Discover Talking Pen. Discover Talking Pen is committed to benefit your little thinker’s development. If The Discover Talking Pen was sold new in the USA by Discover Talking Pen or a Discover Talking Pen-authorized reseller, and is defective due to faulty workmanship or materials, Discover Talking Pen warrants that, at Discover Talking Pen’s option, it will replace or repair The Discover Talking Pen. This non-transferable warranty is for the original purchaser only and is expressly limited as described herein. Discover Talking Pen undertakes no other responsibility and all other warranties, either express or implied including specifically the implied warranty of fitness for a particular purpose and the implied warranty of merchantability, are hereby waived and disclaimed.
This warranty extends from the original purchase date of the original product purchased. This warranty is valid only if the purchaser is an individual who thereafter uses the product for personal consumer use. The warranty no longer applies after any resale of the Talking Pen whether new or used. Original proof of purchase (including date) by the original purchaser, this warranty document, and original packaging from the Talking Pen will be required to make a warranty claim. For warranty service, you are required to preserve these documents during the 1 year warranty period. This warranty applies to the Talking Pen and not to any accessories or other products associated with the Talking Pen. This warranty is applicable only to Talking Pens in normal in-home consumer use, and specifically excludes any Talking Pen used for organizations.
This warranty shall not apply if Discover Talking Pen determines in its reasonable discretion that the Talking Pen has been damaged, abused, or neglected; it shall be reasonable without limitation to make such determination if the following are present: dents, tears, burns, cracks, or signs that the Talking Pen has been damaged, abused, or neglected. Discover Talking Pen highly recommends the use of a very stretchy, breathable Talking Pen protector because without such protection your Talking Pen may not be clean enough or undamaged enough to have this warranty apply. For the health and safety of anyone who would be required to dispose of, or otherwise handle, the Talking Pen, Discover Talking Pen and its retailers or agents may refuse to inspect such products to assess whether covered by the warranty, in which case, Discover Talking Pen reserves the right to deny warranty coverage. Photos may be requested to be sent via internet to Discover Talking Pen.
Discover Talking Pen will not charge purchaser to repair or replace purchaser’s Talking Pen if it is reasonably deemed by Discover Talking Pen to be defective according to the terms herein during the first (1) year since the original purchase. Any to-or-from transportation handling and costs and inspection costs associated with repairs or replacements are the responsibility of purchaser. The warranty for any repaired or replaced Talking Pen runs from the date of original purchase and not from the date of the replacement. Whether to repair or to replace the Talking Pen shall be at Discover Talking Pen’s sole option. The books and other products books and other products are not part of the 1-year warranty and are separately addressed in the next paragraph.
The Discover Talking Pen books and other products are warranted for one (1) month from the date of purchase against faults in material or workmanship. Discover Talking Pen may choose at its sole option to replace the books and other products with the same or different (as one example, a different issue) books and other products or to repair the cover. Purchaser is responsible for to-or-from transportation, handling and inspection costs.
Warranty Coverage Additional Limitations: If replacement of a Talking Pen or books and other products takes place, the product being replaced must be sent to Discover Talking Pen or otherwise disposed of as directed by Discover Talking Pen. DISCOVER TALKING PEN SHALL NOT BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY BREACH OF THIS WARRANTY OR RESULTING FROM THE USE OF ANY PEN, BOOK, OR OTHER PRODUCTS. REPLACEMENT OR REPAIR AS SET FORTH HEREIN SHALL BE THE EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY. THE ONLY WARRANTY IS THE WARRANTY DESCRIBED ON THE FACE OF THIS LIMITED WARRANTY. THIS WARRANTY IS NOT EFFECTIVE IF THE PRODUCT IS USED OUTSIDE THE USA (there may be a separate warranty for non-U.S. products, but be advised that it may not be from Discover Talking Pen). Some states do not allow the exclusion or limitation of incidental or consequential damages or limitations on how long an implied warranty lasts, so limitations or exclusions herein may not apply to you. This warranty provides the original purchaser specific legal rights, and there may be other rights which vary from state to state.
How to Contact Discover Talking Pen for Warranty Issues:
You may email Discover Talking Pen at firstname.lastname@example.org. Contact information may change from time to time, and Discover Talking Pen’s then-current website may be consulted for latest contact information. Thank you for buying a Discover Talking Pen product, and we hope you will have many years of enjoyment!
DISCOVER TALKING PEN RETURN & REFUND POLICIES
Thank you for shopping Discover Talking Pen!
If you are not completely satisfied with your purchase, our job is not done yet!
Please note that returns and exchanges cannot be handled through social media. In order to make a return or exchange, you must email our Customer Delight team before starting your return. Failure to properly follow our return or exchange protocols may result in an inability to return or exchange your product and an inability to provide any refund.
Also note that Discover Talking Pen CANNOT provide refunds for orders made through Amazon.com. If you ordered through Amazon, YOU MUST CONTACT AMAZON TO RETURN YOUR PURCHASE.
Customer Delight contact information: support@DiscoverTalkingPen.com
You have 100 calendar days to return your Discover Talking Pen from the date of delivery. We recommend using your Discover Talking Pen for at least 90 days to fully test out the impact our material can have on your child’s learning. For recommendations on how to make your experience better, please contact us using the information below or check out our website!
To be eligible for a return, your Discover Talking Pen must be clean and undamaged.
Books and other products:
You have 30 calendar days to return your Discover Talking Pen Books and other products from the date of delivery. To be eligible for a return, your Discover Talking Pen Books and other products must be clean and undamaged.
Your purchase will be refunded as your original form of payment once the return is confirmed.
Please note that returns cannot be handled through social media. In order to make a return or exchange, you must email our Customer Delight team.
You can contact us here: