Terms & Conditions
These terms and conditions apply to the Brainfuel® Web site located at www.brainfueltoys.com and all associated Web sites linked to www.brainfueltoys.com by Brainfuel®, its subsidiaries and affiliates, including Brainfuel® sites around the world (collectively 'the Site'). Please read these terms and conditions (the 'Terms and Conditions') carefully. BY USING THE SITE, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
These Terms and Conditions govern your use of, and any purchase from, the Brainfuel® Site, and constitute an agreement between you and Brainfuel®. Brainfuel® reserves the right to change or modify any of these Terms and Conditions or any policy or guideline of the Site at any time, and in its sole discretion. Any change or modification will be effective immediately upon posting of the revisions on the Site. Your continued use of the Site following the posting of its changes or modifications will constitute your acceptance of such changes or modifications. Therefore, you should frequently review these Terms and Conditions and any other applicable policies from time-to-time to understand the terms and conditions that apply to your use of the Site. If you do not agree to the amended terms, you must stop using the Site.
PRODUCT AVAILABILITY AND PRICING
The stock availability on our Web site is listed "as is" and is subject to change. Sometimes with the volume of orders we receive, an item may go out of stock before we are able to post a notification on the Site. If this happens, we will contact you directly to discuss possible options.
From time to time some of our products are discontinued or not available. We reserve the right to discontinue any product(s) at such time as considered necessary. In the event Brainfuel® products are discontinued or obsolete, the customer shall be entitled to a replacement of the discontinued product with one of equal or lesser value at no cost.
Data, including prices, may be inaccurately displayed on our Site due to system or typographical errors. While we make every attempt to avoid these errors, they may occur. We reserve the right to correct any and all errors when they do occur, and we do not honor inaccurate or erroneous prices. If a product's listed price is lower than its actual price, we will, at our discretion, either contact you for instructions before shipping the product or cancel the order and notify you of such cancellation. If the order has been shipped, you agree to either return the product or pay the difference between the actual and charged prices. Our prices are also subject to change without notice. We apologize for any inconvenience that this may cause.
We do not negotiate prices on our products and all our prices are final.
INFORMATION ON OUR SITE
At Brainfuel®, we make every attempt to ensure that our online catalog is as accurate and complete as possible. In order to give you the opportunity to view our products in great detail, some products may appear larger or smaller than their actual size in our photographs; and since every computer monitor is set differently, color and size may vary slightly.
The Site and all content and other materials, including, without limitation, the Brainfuel® logo, and all designs, text, graphics, pictures, selection, coordination, 'look and feel', information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the "Site Materials") are the proprietary property of Brainfuel® or its licensors or users and are protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Brainfuel®, and any other product or service name or slogan contained in our Site are trademarks of Brainfuel® and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Brainfuel® or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing "Brainfuel®" or any other name, trademark or product or service name of Brainfuel® without our prior written permission. All other trademarks, registered trademarks, product names and Brainfuel® names or logos mentioned in our Site are the property of their respective owners.
USE OF THE SITE
You are granted a personal, limited, non-sublicensable license to access and use our Site and electronically copy, (except where prohibited without a license) and print to hard copy portions of our Site Materials for your informational, non-commercial and personal use only. Such license is subject to these Terms and Conditions and does not include: (a) any resale or commercial use of our Site or the Site Materials therein; (b) the collection and use of any product listings, pictures or descriptions for commercial purposes; (c) the distribution, public performance or public display of any Site Materials, (d) modifying or otherwise making any derivative uses of our Site and the Site Materials, or any portion thereof; (e) use of any automated means to access, monitor or interact with any portion of our Site, including through data mining, robots, spiders, scraping, or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of our Site, the Site Materials or any information contained therein, except as expressly permitted on our Site; (g) cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners, advertisement, or anything else which minimizes, covers, or frames or inhibits the full display of our Site; (h) use our Web sites in any way which interferes with the normal operation of our sites; or (i) any use of our Site or the Site Materials other than for its intended purpose. Any use of our Site or the Site Materials other than as specifically authorized herein, without the prior written permission of Brainfuel®, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications, regulations, and statutes. Unless explicitly stated herein, nothing in these Terms and Conditions shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. This license is revocable at any time.
In accordance with the Digital Millennium Copyright Act (DMCA) and other applicable laws, Brainfuel® has adopted a policy of terminating and barring, in appropriate circumstances and at Brainfuel®'s sole discretion, site users or account holders who are deemed to be repeat infringers. Brainfuel® may also at its sole discretion limit access to this site and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
THIRD PARTY CONTENT
Brainfuel® may provide links to Web pages and content of third parties ('Third Party Content') as a service to those interested in this information. Brainfuel® does not monitor or have any control over any Third Party Content or third party Sites. Brainfuel® does not endorse any Third Party Content and can make no guarantees as to its accuracy or completeness. Brainfuel® does not represent or warrant the accuracy of any information contained therein, and undertakes no responsibility to update or review any Third Party Content. Users use these links and Third Party Content contained therein at their own risk.
ADVERTISEMENTS AND PROMOTIONS
Brainfuel® may run advertisements and promotions from third parties on our Site. Your business dealings or correspondence with, or participation in promotions of, advertisers other than Brainfuel®, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party. Brainfuel® is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such non- Brainfuel® advertisers on our Site.
You acknowledge and agree that any materials, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, designs, original or creative materials or other information, regarding this site, Brainfuel®, or our products or services that are provided by you to Brainfuel® are non-confidential and shall become the sole property of Brainfuel®. Brainfuel® will own exclusive rights, including all intellectual property rights, and will be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You grant Brainfuel® and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that (a) you own and control all of the rights to the content that you submit, or that you otherwise have the right to submit such content to this site; (b) the content is accurate and not misleading; and (c) use and posting of the content you supply will not violate any rights of or cause injury to any person or entity.
PRODUCT REVIEWS AND USER CONTENT
Our Site includes a product review feature, and includes or may include in the future, discussion forums, user generated content, or other areas or services in which you or third parties create, post, or store any content, messages, materials or other items on our Site ('Interactive Areas'). You are solely responsible for your use of such Interactive Areas and use them at your own risk. By using any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish through our Site any of the following:
Any message, data, information, text, music, sound, photos, video, graphics, code or other material ('User Content') that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission or any rules of a securities exchange such as the New York Stock Exchange, the American Stock Exchange or the NASDAQ;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any User Content, you represent and warrant that you have the lawful right to distribute and reproduce such User Content;
User Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
Unsolicited promotions, political campaigning, advertising or solicitations;
Private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
Viruses, corrupted data or other harmful, disruptive or destructive files; and
User Content that, in the sole judgment of Brainfuel®, is objectionable or which restricts or inhibits any other person from using or enjoying the Interactive Areas or our Site, or which may expose Brainfuel® or its users to any harm or liability of any type.
If you post User Content to our Site, unless we indicate otherwise, you grant Brainfuel® and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media. You grant Brainfuel® and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that (a) you own and control all of the rights to the User Content that you post or you otherwise have the right to post such User Content to our Site; (b) the User Content is accurate and not misleading; and (c) use and posting of the User Content you supply does not violate these Terms and Conditions and will not violate any rights of or cause injury to any person or entity.
Approval Considerations for Web site Reviews
Whatever you write, please be polite! Any reviews that contain inappropriate material will not be approved. This may consist of, but is not limited to:
URLs or links of any kind,
Derogatory or discriminatory language, profanity, sexually explicit or offensive material,
Talk or information on pricing,
Infringement upon copyrights or trademarks,
Spam, images, logos, or links from competitors' sites,
Negative or disparaging comments about other users or Brainfuel® in general,
In addition, if you have feedback about a problem with a product or any customer service issues, it's always best to contact us directly.
You agree to defend, indemnify and hold harmless Brainfuel®, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any Content you post, store or otherwise transmit on or through our Site or your use of or inability to use our Site, including without limitation any actual or threatened suit, demand or claim made against Brainfuel® and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the Content, your conduct, your violation of these Terms and Conditions or your violation of the rights of any third party.
DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY Brainfuel®, THIS SITE, THE CONTENT CONTAINED THEREIN, AND THE PRODUCTS AND SERVICES PROVIDED ON OR IN CONNECTION THEREWITH (THE "PRODUCTS AND SERVICES") ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Brainfuel® DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT AS TO THE INFORMATION, CONTENT, AND MATERIALS IN OUR SITE. Brainfuel® DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN OUR SITE OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. Brainfuel® DOES NOT REPRESENT OR WARRANT THAT OUR SITE OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
LIMITATION OF LIABILITY
IN NO EVENT SHALL Brainfuel®, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OUR SITE, THE PRODUCTS AND SERVICES, OR THE CONTENT CONTAINED IN OR ACCESSED THROUGH OUR SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM Brainfuel®, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO Brainfuel®'S RECORDS, PROGRAMS OR SERVICES.
APPLICABLE LAW AND VENUE
These Terms and Conditions and your use of this site will be governed by and construed in accordance with the laws of the State of Oregon, applicable to agreements made and to be entirely performed within the State of Oregon, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms and Conditions shall be filed only in the state and federal courts located in Washington County, Oregon and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of your use of this Site, any purchase from this Site, or these Terms and Conditions.
MODIFICATION AND NOTICE
You agree that Brainfuel® may modify these Terms and Conditions and any other policies on our Site at any time and that posting the modified Terms and Conditions or policies on our Site will constitute sufficient notice of such modification.
Notwithstanding any of these Terms and Conditions, Brainfuel® reserves the right, without notice and in its sole discretion, to terminate your license to use this Site, and to block or prevent your future access to and use of this Site.
If any provision of these Terms and Conditions shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of any remaining provisions.