These “Terms and Conditions” (“Terms” or “Agreement”) govern your use of the Site and your purchase of products offered for sale on the Site (“Products”). They form a binding agreement between you and Munchkin.
THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT WAIVE YOUR RIGHT TO A COURT HEARING OR JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW OR IF YOU OPT-OUT.
Please review this document before accessing, using or buying any Product through the Site. If you do not agree to all of the terms of this Agreement, please do not use the Site or purchase Products through it. If you have questions, please contact us at firstname.lastname@example.org or 1-800-344-BABY (2229).
Munchkin grants you a personal, revocable, non-transferable, non-exclusive limited license to access and use the Site only for personal purposes and strictly in accordance with these Terms. These Terms govern any upgrades of the Site by Munchkin, unless the upgrade is accompanied by a separate license, which will govern. All rights not expressly granted in these Terms are reserved for Munchkin. You may access, download, and print materials only where you retain all notices, trademarks, and other markings found on those materials.
Site Ownership and Content
The Site contains materials and other items about Munchkin’s products and services including, but not limited to, text, images, files, scripts, designs, photographs, videos, audio clips, graphics, button icons, pictures, advertising copy, URLs, technology, software, interactive features, and the overall arrangement or “look and feel” of such materials including copyrightable material, as well as trademarks, logos, and service marks that belong to either Munchkin, its licensors, licensees or other third parties (collectively the “Content”).
The Site and the Content are owned, licensed, or controlled by Munchkin, its licensors, and certain other third parties, and as such all right, title, interest in and to the Content and the Site is the property of Munchkin, its licensors, or certain other third parties, and protected by United States and International copyright, trademark, trade dress, patent or other intellectual property rights and laws to the fullest extent possible.
Munchkin is the owner of the copyright in the Content on the Site. By using the Site, you will not obtain any ownership or intellectual property or other interest in any item or content on the Site. Other than as explicitly permitted herein, you may not copy, reproduce, republish, upload, post, publicly display, encode, translate, transmit or distribute, in any way (including “mirroring”) to any other computer, server, website, medium or commercial enterprise, any part of the Site or any Content without our express prior written consent.
Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Site or the Content except as permitted or consented by these Terms.
No Guarantee of Site Use
We may make improvements, changes, or amendments to the information, services, products, and other materials on the Site, or terminate the Site, or your access to the Site, at any time in our sole discretion. We reserve the right to change, suspend, remove, or disable access to the Site at any time without notice. In no event will we be liable for any harm claimed from the removal or disabling of access to the Site. We may also impose limits on the use of or access to the Site, or portions thereof, in any case and without notice or liability.
The Site that may be accessed from, displayed on or linked to from your mobile device or PC is not available in all languages or in all countries. We make no representations that the Site is appropriate or available for use in any particular location. To the extent you choose to access the Site, you are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
Information You Provide and We Collect
You agree that you will comply with these Terms and that you will not engage in conduct or communications that: (a) are obscene, fraudulent, indecent, defamatory, abusive, harassing, or threatening to others, or negatively impacts others’ ability to use the Site (b) contain any viruses, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful components intended to, or that may, damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (c) advocate or encourage any illegal activity; (d) infringe on the copyright, patent, trademark, trade secret, right of publicity, or other intellectual property or proprietary right of any third party; (e) violate the privacy of individuals, including, but not limited to, other users of the Site; (f) engage in, assist, or encourage any conduct, activities, or communications that affect the operation, access, or usability of the Site for any other authorized user; or (g) violate any applicable local, state, national or international law.
You also agree that you will not (h) attempt to gain unauthorized access to any portion or feature of the Site or our systems, networks or servers by hacking, password “mining” or any other illegitimate means. You agree not to (i) access, acquire, copy, monitor, circumvent, or create derivative works from any portion of our Site, systems, networks or servers to obtain or attempt to obtain any Content (defined below), materials, documents, or information through any means not purposely made available through the Site. You also agree not to sell, license, or distribute any such Content, materials, documents, or information. We reserve the right to bar any such activity or use in our sole discretion.
You acknowledge that the Site, and any related blogs, messages, or other information, are for informational purposes only. The views expressed by authors of our articles and blog posts, including employees and outside guest authors, are the opinions of the individual author, and do not represent the opinions or views of Munchkin.
Except where expressly permitted, you may not rent, lease, lend, sell, redistribute, or license the Content, the Site, our products or services, or access to the same. You may not copy, adapt, distribute, attempt to derive the source code of, modify, or create derivative works of the Site or our products or services, any updates, or any part thereof except as expressly permitted herein.
You agree to provide true, accurate, current, and complete information to Munchkin through the Site.
If you register for an account to use the Site, you agree to provide a user name and password, and to assume all responsibility for the activity occurring on the account. Please immediately notify Munchkin if you suspect or become aware of any loss or theft of your password or any unauthorized use of your user name and password.
When you post or share pictures, reviews, messages, comments, content, or other information on the Site or other Munchkin-sponsored forums, blogs, social networking sites, or other communities, you create “User Content.”
Please do not create User Content that includes pictures or videos of family or friends if you do not have their permission to post such photos. User Content must not be defamatory, slanderous, indecent, obscene, pornographic, sexually explicit, discriminatory, hateful or be used for commercial gain. The Site is not intended as a political or policy forum.
You further represent and warrant that you are the sole author and owner of User Content and to your knowledge it does not infringe on the rights of or harm any other third parties. You give Munchkin the sole and exclusive right to remove, alter, or change the User Content and to bring any legal actions regarding such User Content on your behalf.
Copyright Notice and Take-Down Procedures
If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a Notice of Claimed Infringement to Munchkin consistent with the Digital Millennium Copyright Act (DMCA) by providing the following information:
- A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- Identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
- Identification or description of where the material that you claim is infringing is located on the Site, with enough detail that Munchkin may find it on the Site;
- Your address, telephone number, and email address;
- A statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright owner or intellectual property owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Our agent designated to receive claims of copyright or other intellectual property infringement may be contacted as follows: Munchkin, Inc., 7835 Gloria Avenue, Van Nuys, CA 91406 Attn: General Counsel.
Purchasing Items on our Site
All transactions made through the Site are subject to our acceptance, in our sole discretion. Without limitation, this means that we may refuse to accept or may cancel any transaction for any or no reason, in our sole discretion, regardless of whether the transaction has been confirmed, and without liability to you or any third party.
Munchkin must receive payment prior to its acceptance of an order, unless otherwise agreed by Munchkin. Munchkin expressly conditions its acceptance of your order on your agreement to these Terms and Conditions, and to any additional terms provided on the Site that govern your purchase of certain Products.
If payment has already been made and your order is cancelled or limited, Munchkin will refund any payment you made for Product that will not be shipped due to cancellation or limitation of an order. Payment will be made in the same tender as the original purchase.
The Site does not permit orders from dealers, wholesalers, or other customers who intend to resell items offered on the Site.
Munchkin reserves the right without prior notice to discontinue or change specifications and prices on Products offered on or off the Site without incurring any obligation to you. Prices and availability are subject to change without prior notice. We make every effort to ensure the accuracy of the information on the Site, but Munchkin reserves the right to revoke any stated offer to correct any errors, inaccuracies, or omissions.
Disclaimer of Representations and Warranties
THE WEBSITE AND ITS CONTENT ARE FOR GENERAL INFORMATION ONLY AND PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.
WE DO NOT WARRANT THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED OR WITHOUT PROBLEMS OR ERRORS, THAT DEFECTS IN OR ON THE WEBSITE WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVERS THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK OF ANY RELIANCE ON THE WEBSITE OR ITS CONTENTS.
WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS REGARDING THE WEBSITE OR ITS CONTENTS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, SECURITY, QUALITY, TIMELINESS, AVAILABILITY, COMPLETENESS, RELIABILITY, ACCURACY, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE ARE IN FACT AWARE OF ANY SUCH PURPOSE).
WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT WITH RESPECT TO THE WEBSITE OR ITS CONTENT.
Notwithstanding anything to the contrary herein, this Disclaimer of Representations and Warranties does not apply in New Jersey.
Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL MUNCHKIN, ITS AFFILIATES OR ITS SUBSIDIARIES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SPONSORS OR AGENTS BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, OR INFORMATION CONTAINED WITHIN THE WEBSITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES WHETHER THE DAMAGES ARE BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU.
Any claim under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred, and any claim by you is subject to the Limitation of Liability set forth above.
Dispute Resolution by Binding Arbitration and Class Action Waiver
If you and Munchkin are not able to resolve such a Dispute, we each agree that any and all Disputes shall be submitted to final and binding arbitration before a single arbitrator of the American Arbitration Association (“AAA”) in a location convenient to you. Either party may commence the arbitration process by submitting a written demand for arbitration with the AAA, and providing a copy to the other party. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Dispute Resolutions Procedures, Supplementary Procedures for Consumer-Related Disputes, in effect at the time of submission of the demand for arbitration. We will pay all of the filing costs, including arbitrator fees. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, the following shall not be subject to arbitration and may be adjudicated only in the state and federal courts located in Los Angeles County, California: (i) any dispute, controversy, or claim relating to or contesting the validity of the our proprietary rights, including without limitation, trademarks, service marks, copyrights, or trade secrets; or (ii) an action by a party for temporary, preliminary, or permanent injunctive relief, whether prohibitive or mandatory, or other provisional relief. Unless you opt-out using the mechanism below, you expressly agree to refrain from bringing or joining any claims in any representative or class-wide capacity, including but not limited to bringing or joining any claims in any class action or any class-wide arbitration.
YOU UNDERSTAND THAT YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH ARBITRATION.
You shall have thirty (30) days from the date that you access the Site or submit your personally identifiable information (whichever occurs first) to opt-out of this arbitration agreement. To opt out of arbitration you must contact us at Munchkin, Inc., 7835 Gloria Avenue, Van Nuys, CA 91406, Attn: General Counsel.
If more than thirty (30) days have passed, you are not eligible to opt out of arbitration.
If any provision of these Terms is deemed invalid, unlawful, void, or unenforceable by an arbitrator or (if proper) a court of competent jurisdiction, then the provision will be deemed severable with the remaining provisions unaffected, continuing in full force and effect. Except as expressly set forth in these Terms, no failure or delay by you or Munchkin to exercise any rights, powers, or remedies under this Agreement will operate as a waiver of that or any other right, power, or remedy. You may not assign or transfer your rights or obligations under the Terms by operation of law or otherwise without Munchkin’s prior written consent, and any such attempt will be of no effect. Munchkin may assign or transfer its rights and obligations under these Terms, at its sole discretion, without restriction. Subject to the foregoing, the rights and obligations of the parties under these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
The trademarks and other logos, product, and service names are trademarks and service marks owned by or licensed to Munchkin or its affiliates. You agree not to display or use the trademarks in any manner without the prior written permission of Munchkin or its appropriate affiliates.
All other trademarks are the property of their respective owners.
Last Updated: October 16, 2020