Terms of Service
Last Updated: October 23, 2019
Welcome, and thank you for your interest in TA-DA! Language Productions, Inc. (“TA-DA!,” “we,” or “us”) and our website at www.tadalp.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and TA-DA! regarding your use of the Service.
Please read the following terms carefully.
BY CLICKING “I ACCEPT,” OR OTHERWISE ACCESSING OR USING THE SERVICE OR PURCHASING PRODUCTS, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING TA-DA!’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service. YOUR USE OF THE SERVICE, AND TA-DA!’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY TA-DA! AND BY YOU TO BE BOUND BY THESE TERMS.
Arbitration NOTICE. Except for certain kinds of disputes described in Section 20, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TA-DA! ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 20.)
1. TA-DA! Service Overview
TA-DA! creates interactive children’s books (“Products”) and resources for parents that are both developmental and entertaining.
2. Eligibility
You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
3. Accounts and Registration
When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@tadalp.com.
4. Purchases
TA-DA! reserves the right to cancel or refuse any order for any reason at any time prior to shipment, including after an order has been submitted, whether or not the order has been confirmed. We may attempt to contact you if all or a portion of your order is cancelled, or if additional information is needed to complete and accept your order. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable, except as described in Section 5.
4.1 Price. TA-DA! reserves the right to determine pricing for Products. TA-DA! will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. TA-DA! may change the fees for any feature of any Product at any time. TA-DA!, at its sole discretion, may make promotional offers with different features and different pricing to any of TA-DA!’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2 Customer Location. TA-DA! will only accept orders from billing and shipping addresses located within the United States.
4.3 Pre-Orders. Products may be made available for pre-order via the Services. If you place a pre-order for a Product that is not yet available for sale, TA-DA! will charge your credit card for the cost of the product plus any applicable charges for taxes and shipping, and will ship you the Product once it is available. Products may change from the time that you submitted your offer to TA-DA! and the time that the Product is ready for shipment. If you need to update your shipping address after you place an order, please contact TA-DA! at support@tadalp.com.
4.4 Shipping Charges. We will list shipping charges for your order upon checkout, and you must pay all shipping charges for the location of the address you provide. You must also pay all tariff, import, customs, tax, and other charges applicable in your jurisdiction. If shipping costs to the address that you provide for an accepted pre-order are higher than the shipping costs you paid at the time that you offered to purchase the Product, TA-DA! may, in its sole discretion, require you to pay additional shipping fees or refund the full amount you paid.
4.5 Delivery. TA-DA! will attempt in good faith to deliver your items in accordance with your order, but TA-DA! will not be responsible or liable for any delays or failure in such delivery. TA-DA! expressly reserves the right to effect delivery of any order in any number of separate shipments, and the modes of transport and carriers will be decided at TA-DA!’s discretion. Your order will be delivered to the delivery address you specify when placing your order. If your delivery address is geographically remote or otherwise difficult to deliver to, it is possible that we may not be able to deliver there. Orders cannot be delivered to PO Box or similar addresses. TA-DA! will not be responsible or liable for any delay or failure to deliver due to any cause which is unavoidable or beyond TA-DA!’s reasonable control. In such cases, TA-DA! will have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time. If you have an updated shipping address or an updated credit card after you placed the order, please contact TA-DA! at support@tadalp.com.
4.6 Authorization. You authorize TA-DA! to charge all sums for the orders that you make as described in these Terms or published by TA-DA!, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, TA-DA! may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.7 Delinquent Accounts. TA-DA! may suspend or terminate access to the Service for any account for which any amount is due but unpaid. In addition to the amount due for Products, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. Refunds or Exchanges
If you are not 100% satisfied with your purchase, you can return the Product and get a full refund or exchange the Product for another one of the same price, be it similar or not. Products purchased from TA-DA! are eligible for a refund or exchange if TA-DA! receives your return within 14 days of purchase. Products must be unused and in their original packaging. No returns will be accepted if you fail to ship the Product back to us within 14 days.
5.1 Refunds. Please note that returns may take 3-10 business days to process upon reaching us. Once your return is processed and your refund is issued, you will receive a refund confirmation email. Refunds can take several business days to reflect on your credit card account depending on your financial institution.
5.2 Shipping. You will be responsible for paying for your own shipping costs for returning your item. Shipping costs are non-refundable. If you receive a refund, the cost of return shipping will be deducted from your refund. Please visit Shipping and Returns for instructions on how to send in your return or exchange.
6. Giving and Redeeming Gifts
6.1 Purchase. You do not need to purchase a TA-DA! Gift Card (“Gift Card”) to order a book for yourself. The purchase of a Gift Card is a way for a purchaser (“Purchaser”) to purchase a book for a recipient (“Recipient”). Gift Cards are unique digital codes that Recipients can use as payment in our online store. When purchasing a Gift Card, customers will go directly to checkout after clicking Purchase. At checkout, the purchaser can choose to email the Gift Card to the recipient or themselves.
6.2 Redemption. Gift Card Recipients will receive a redemption code (“Redemption Code”) which can be redeemed by purchasing products and entering the Redemption Code at checkout. The Recipient can apply the Redemption Code to any book. Redemption Codes apply to the order total, including tax, shipping, and any transaction fees. If the order total exceeds the Redemption Code value, the Recipient may pay the remaining amount using the store’s supported payment methods or another gift card. If the order total is less than the Redemption Code value, the Recipient can complete checkout without another payment method. The amount applied and remaining value is displayed in the order receipt.
6.3 Limitations. A Gift Card may not be applied to a purchase for delivery outside the United States. If a Purchaser gives a Gift Card to a Recipient who is not eligible to receive a book, the Gift Card may be transferred to a different Recipient. Gift Cards can be transferred from one Recipient to another Recipient, but may not be reloaded, resold, or redeemed for cash, except as otherwise specified and to the extent required by law. Recipients must be 18 or older. TA-DA! reserves the right to void Gift Cards and close user accounts if it suspects that a Gift Card is obtained, used, or redeemed fraudulently, unlawfully, or otherwise in violation of these Terms.
6.4 Risk of Loss. The risk of loss and title for Gift Cards passes to the Purchaser upon our delivery of the Gift Card to the Purchaser or designated Recipient. TA-DA! is not responsible if any Gift Card is lost, stolen, or destroyed, or if your Gift Card is used without your permission.
6.5 Refunds. Refunds for Gift Cards will not be given to Recipients. Purchasers may request a refund for a purchased Gift Code within 14 days of purchase by following the refund policy described in Section 5. TA-DA! will be unable to process a refund for partially used Gift Cards, even if the refund is requested within 14 days of the purchase, to the extent permitted by law. Promotional Gift Cards, such as those given away or awarded without cost in connection with a promotional campaign, are not eligible for a refund.
6.6 No Expiration. Gift Cards and Redemption Codes do not expire. TA-DA!, however, reserves the right to refund the purchase price of a Gift Card to the Purchaser if the Gift Card has not been redeemed by an eligible Recipient within six months of purchase. Gift Card Recipients are not eligible to receive a refund.
7. Contests
TA-DA! may provide contests on the Service. The rules, regulations, and procedures governing such contests (“Contest Rules”) will be accessible through a hypertext link displayed on the web page where the contest may be located. By entering or participating in any of our contests, you agree to be subject to those rules, regulations and procedures as well as the terms and conditions of these Terms. In the event of a conflict between any Contest Rules and these Terms, the applicable Contest Rules will govern.
8. Licenses
8.1 Limited License. Subject to your complete and ongoing compliance with these Terms, TA-DA! grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.
8.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
8.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant TA-DA! an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
9. Ownership; Proprietary Rights
The Service is owned and operated by TA-DA!. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by TA-DA! are protected by intellectual property and other laws. All Materials included in the Service are the property of TA-DA! or its third party licensors. Except as expressly authorized by TA-DA!, you may not make use of the Materials. TA-DA! reserves all rights to the Materials not granted expressly in these Terms.
10. Third Party Terms
10.1 Third Party Linked Websites. The Service may contain links to third party websites. Linked websites are not under TA-DA!’s control, and TA-DA! is not responsible for their content.
10.2 Third Party Software. The Service may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
11. User Content
11.1 User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
11.2 Limited License Grant to TA-DA!. By providing User Content to or via the Service, you grant TA-DA! a worldwide, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
11.3 Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
11.4 User Content Representations and Warranties. TA-DA! disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
a. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize TA-DA! and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by TA-DA!, the Service, and these Terms;
b. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate 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) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause TA-DA! to violate any law or regulation; and
c. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
11.5 User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. TA-DA! may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against TA-DA! with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TA-DA! does not permit copyright-infringing activities on the Service.
11.6 Monitoring Content. TA-DA! does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that TA-DA! reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time TA-DA! chooses to monitor the content, TA-DA! still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
12. Communications
12.1 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
13. Prohibited Conduct
BY USING THE SERVICE YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
e. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
f. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
g. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 9) or any right or ability to view, access, or use any Materials; or
h. attempt to do any of the acts described in this Section 12 or assist or permit any person in engaging in any of the acts described in this Section 12.
14. Digital Millennium Copyright Act
14.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
TA-DA! Language Productions, Inc.
ATTN: Legal Department (Copyright Notification)
545 Meridian Ave, Ste D 28654
San Jose CA 95126
Email: copyright@tadalp.com
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
14.2 Repeat Infringers. TA-DA! will promptly terminate the accounts of users that are determined by TA-DA! to be repeat infringers.
15. Modification of these Terms
We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 15, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
16. Term, Termination and Modification of the Service
16.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 16.2.
16.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, TA-DA! may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at support@tadalp.com.
16.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay TA-DA! any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 8.3, 9, 16.3, 17, 18, 19, 20 and 21 will survive.
16.4 Modification of the Service. TA-DA! reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain Products or features of the Service), temporarily or permanently, without notice to you. TA-DA! will have no liability for any change to Products offerings or the Service or any suspension or termination of your access to or use of the Service.
17. Indemnity
To the fullest extent permitted by law, you are responsible for your use of the Service and Products, and you will defend and indemnify TA-DA! and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “TA-DA! Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
18. Disclaimers; No Warranties
THE SERVICE, PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TA-DA! DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, PRODUCTS, AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. TA-DA! DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TA-DA! DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR TA-DA! ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TA-DA! ENTITIES, PRODUCTS, OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE, PRODUCTS, AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AND PRODUCTS AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. TA-DA! does not disclaim any warranty or other right that TA-DA! is prohibited from disclaiming under applicable law.
19. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TA-DA! ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE, PRODUCTS, OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TA-DA! ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 20.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TA-DA! ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE, PRODUCTS, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO TA-DA! FOR TO TA-DA! FOR PRODUCTS IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 19 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. Dispute Resolution and Arbitration
20.1 Generally. In the interest of resolving disputes between you and TA-DA! in the most expedient and cost effective manner, and except as described in Section 20.2 and 20.3, you and TA-DA! agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TA-DA! ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
20.2 Exceptions. Despite the provisions of Section 20.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
20.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 20 within 30 days after the date that you agree to these Terms by sending a letter to TA-DA! Language Productions, Inc., Attention: Legal Department – Arbitration Opt-Out, 545 Meridian Ave, Ste D 28654, San Jose, CA that specifies: your full legal name, the email address associated with your account on the Service if applicable, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once TA-DA! receives your Opt-Out Notice, this Section 20 will be void and any action arising out of these Terms will be resolved as set forth in Section 21.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
20.4 Arbitrator. Any arbitration between you and TA-DA! will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TA-DA!. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
20.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). TA-DA!’s address for Notice is: TA-DA! Language Productions, Inc., 545 Meridian Ave, Ste D 28654, San Jose, CA. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or TA-DA! may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or TA-DA! must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by TA-DA! in settlement of the dispute prior to the award, TA-DA! will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $100.
20.6 Fees. If you commence arbitration in accordance with these Terms, TA-DA! will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county of Santa Clara, California[BG17] , but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TA-DA! for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
20.7 No Class Actions. YOU AND TA-DA! AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TA-DA! agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
20.8 Modifications to this Arbitration Provision. If TA-DA! makes any future change to this arbitration provision, other than a change to TA-DA!’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to TA-DA!’s address for Notice of Arbitration, in which case your account with TA-DA! will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
20.9 Enforceability. If Section 20.7 or the entirety of this Section 20 is found to be unenforceable, or if TA-DA! receives an Opt-Out Notice from you, then the entirety of this Section 20 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 21.2 will govern any action arising out of or related to these Terms.
21. Miscellaneous
21.1 General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and TA-DA! regarding your use of the Service and purchase of Products. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
21.2 Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and TA-DA! submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the county of San Francisco, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Products and Materials included in the Service are appropriate or available for use in other locations.
21.3 Privacy Policy. Please read the TA-DA! Privacy Policy carefully for information relating to our collection, use, storage, disclosure of your personal information. The TA-DA! Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
21.4 Additional Terms. Your use of the Service and Products is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
21.5 Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
21.6 Contact Information. The Service is offered by TA-DA! Language Productions, Inc., located at 545 Meridian Ave, Ste D 28654, San Jose, CA. You may contact us by sending correspondence to that address or by emailing us at support@tadalp.com.
21.7 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
21.8 No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
21.9 International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use in your jurisdiction. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.