EFFECTIVE November 14, 2016
This is a binding contract between you and Anki, Inc. (with its affiliates, "Anki", "we" and "us") and describes the rules and restrictions that apply to our websites, products, and services, including the Anki OVERDRIVE and Cozmo devices and their associated applications (the "Services"). Please read these Terms carefully. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of by litigation in court.
Changes to our Services and these Terms. We may introduce new features, change or limit features (including by automatic update), remove Content, or restrict access to parts or all of the Services, without notice to you. We reserve the right to change the Terms by displaying the updated Terms at Anki.com or within the Services. By using the Services after a change to the Terms, you agree to all of the changes. This agreement, and any disclosures we make to you through the Services or via your registered email or other communications, are considered for legal purposes to be in writing.
Using the Services. Some of the Services may require you to sign up for an account. You promise to provide us with accurate and complete registration information. You must keep secure and may not transfer or share your account or password. You're responsible for activity including any orders associated with your account. You represent and warrant that you are of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf. You will only use the Services for your own internal, personal, non-commercial use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you. If your use of the Services is prohibited by applicable laws, then you aren't authorized to use the Services. We are not responsible for your using the Services in a way that breaks the law.
Restrictions. You may not use or interact with the Services to, or contribute User Submissions that: (a) infringe or violate the intellectual property rights or any other rights of anyone else (including Anki); (b) violate any law or regulation, including any applicable export control laws; (c) harm, defraud, harass, threaten, or deceive others, or make contributions that are obscene or otherwise objectionable; (d) jeopardize the security of your Anki account or anyone else's; (e) attempt, in any manner, to obtain the password, account, or other security information from any other user, or impersonate others; (f) violate the security of any computer network, or cracks any passwords or security encryption codes; (g) run Maillist, Listserv, any form of auto-responder or "spam" on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services' infrastructure); (h) scrape or spider any page, data, or portion of or relating to the Services or Content (through use of manual or automated means), for competitive purposes or any other reason; (i) copy or store any significant portion of the Content; (j) decompile, reverse engineer, tamper with, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services or use the Services to develop competing products.
Copyright, Trademark & DMCA. The materials displayed or performed or available on or through the Services, including text, graphics, data, articles, software, photos, images, illustrations, logos, service marks, trademarks, and User Submissions (collectively, the "Content"), and in some cases the Services themselves, are protected by copyright, patent, trademark and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content (which may be Anki or our licensors) or (ii) in a way that violates someone else's (including Anki's) rights.
You understand that Anki owns the Content and the Services and intellectual property in them (except that you own physical hardware devices that you have purchased, but not software or other materials we may license to you under these Terms even if such materials reside on your devices). You won't modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services. We respect others' intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers; visit anki.com/copyright-and-ip-policy to review our complete DMCA and Copyright Dispute Policy and learn how to report potentially infringing content.
Content. Anything you post, upload, share, store, or otherwise provide through the Services is your "User Submission." You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. Some User Submissions are viewable by other users. We do not regularly review User Submissions, but reserve the right to remove or edit content you submit, including to enforce these Terms. For all User Submissions, you hereby grant Anki a license to translate, modify (for technical purposes, for example making sure your content is viewable on a mobile device as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate and improve your experience and the Services. This is a license only – your ownership in User Submissions is not affected. If you share a User Submission publicly on the Services and/or in a manner that more than just you can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a "Public User Submission"), then you grant Anki the license above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all Anki users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with Anki's business. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services. The licenses you grant to us are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, unless the Services indicate otherwise.
Third Parties. Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and we aren't liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.
If there is a dispute between participants on this site, or between users and any third party, Anki is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release Anki, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "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."
Orders. We reserve the right to cancel or modify orders for any reason. For example, we may refuse to ship to known freight forwarders or if we suspect fraud or abuse or any violation of these Terms. We also may change our prices, the availability of products, or make other updates.
Products Warranty. For warranty information regarding Anki-branded hardware product and accessories, please visit anki.com/returns-warranty. We may not support warranty service outside of countries in which we sell.
Warranty Disclaimer. Neither Anki nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. Use of the Services is at your own risk. EXCEPT AS OTHERWISE PROVIDED IN THE PRODUCTS WARRANTY SECTION ABOVE, THE SERVICES AND CONTENT ARE PROVIDED BY ANKI (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RELIABILITY NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANKI (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF DATA OR RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES OR THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, OR (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO ANKI IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold Anki, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any third party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Anki's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.
Arbitration. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ANKI AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. Furthermore, either you or Anki may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work.
Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU ACKNOWLEDGE AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND ANKI ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.
Both you and Anki acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Anki's officers, directors, employees and independent contractors ("Personnel") are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
Arbitration Opt-Out: You have the right to opt out of the foregoing arbitration provision by sending written notice of your decision to opt out to Anki, Inc., 55 2nd St., 15th Floor, San Francisco, CA 94105 postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of this Section's arbitration agreement. If you send this notice, and/or in any circumstances where the foregoing arbitration provision permits either you or Anki to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration provision will not apply to either party and both you and Anki agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively San Francisco County, California.
Miscellaneous. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Anki agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Anki, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Anki, and you do not have any authority of any kind to bind Anki in any respect whatsoever. Except as expressly set forth in the section regarding Apple, you and Anki agree there are no third party beneficiaries intended under these Terms.
Termination. You're free to terminate your account at any time, by contacting us at firstname.lastname@example.org. We are free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Anki has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
Additional Terms for Apple users. You acknowledge and agree to the following additional terms that apply to the Anki mobile applications available via the Apple, Inc. App Store (the "iOS App"):
- The Terms are concluded between you and Anki only, and not with Apple, and Apple is not responsible for the iOS App or the Content;
- You will only use the iOS App in connection with an Apple device that you own or control;
- Apple has no obligation to furnish maintenance and support for the iOS App or address any claims you or a third party may have in relation to the iOS App;
- In the event of any failure of the iOS App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the iOS App;
- in the event of any third party claim that the iOS App or your possession and use of the iOS App infringes that third party's intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- In your use of the iOS App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.