The eCommerce Site, the GRL Site and the Parent App are operated by Embodied, Inc. (“Embodied”). Moxie is manufactured and sold by Embodied. Throughout the site, the terms “we”, “us” and “our” refer to Embodied. Embodied offers the eCommerce Site, the GRL Site and the Parent App, including all information, tools and services available from these sites and the app to you, the user, conditioned upon your acceptance of all terms, conditions, policies and notices stated here.
WARNING: IN ADDITION TO THE FOREGOING PROHIBITED USES, PLEASE BE ADVISED THAT THE MOXIE ROBOT IS AN ELECTRICAL APPLIANCE AND THEREFORE YOU MUST AT ALL TIMES TAKE BASIC PRECAUTIONS WHEN USING THE PRODUCT. PLEASE SEE IMPORTANT SAFETY INFORMATION IN YOUR USER GUIDE OR QUICK START GUIDE.
1) GENERAL CONDITIONS
You may not use our Embodied Services for any illegal or unauthorized purpose nor may you, in the use of the Embodied Services, violate any laws in your jurisdiction (including but not limited to copyright laws).
You must not transmit any worms or viruses or any code of a destructive nature.
A breach or violation of any of the Terms will result in an immediate termination of the use of the Embodied Services.
We reserve the right to refuse service to anyone for any reason at any time.
You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Credit card information is always encrypted during transfer over networks.
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Embodied Services, use of the Embodied Services, or access to the Embodied Services or any contact on the website through which the service is provided, without express written permission by us.
The headings used in this Agreement are included for convenience only and will not limit or otherwise affect these Terms.
2) ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on the Embodied Services (including the eCommerce Site, the GRL Site and the Parent App) are not accurate, complete or current. The material on this the Embodied Services is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on the Embodied Services is at your own risk.
The Embodied Services may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of these Embodied Services at any time, but we have no obligation to update any information on our sites. You agree that it is your responsibility to monitor changes to our Embodied Services.
3) EMBODIED SERVICES DESCRIPTION
The Embodied Services are for your personal, noncommercial use and are intended for information and entertainment purposes only. The Embodied Services does not constitute legal, professional, medical or healthcare advice or diagnosis.
Intellectual Property Ownership - The Embodied Services are our Intellectual Property or the Intellectual Property of Embodied, our licensors or licensees. All copyrights, moral rights, trademarks, service marks, trade dress, and trade names and additional intellectual property rights are owned by Embodied, or Embodied’s licensors or licensees. You may own the physical media on which portions of the Embodied Services are delivered to you, but Embodied retains complete and full ownership of the Embodied Services Intellectual Property and/or the Embodied Services. There is no transfer of title or any rights to any portion of the Embodied Services to you. Different parts of the Embodied Services may not be used or exploited in any way other than as part of the Embodied Services that are offered to you. A list of some of Embodied’s Intellectual Property is provided at www.embodied.com/pages/IP-Notice
4) EMBODIED PRODUCTS OR SERVICES
The Moxie Robot is only available for sale through the eCommerce web site. The Moxie Robot may have limited quantities and is subject to return or exchange only according to our Return Policy, available at embodied.com/pages/return-policy. We have made every effort to display as accurately as possible the colors and images of the Moxie Robot that appears on the eCommerce Site. We cannot guarantee that your computing device’s display of any color will be accurate.
The Parent App is only available for download at Apple App Store or Google Play.
We reserve the right, but are not obligated, to limit the sales of the Embodied Products or Embodied Services to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at anytime without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on the eCommerce Site is void where prohibited.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Product or Service Policy will be corrected.
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address or phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
You agree to provide current, complete and accurate purchase and account information for all purchases made at the eCommerce Site. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
Embodied plans to offer a one-year limited warranty for the Moxie Robot. Details of the limited one-year warranty may be found at www.embodied.com/pages/warranty.
5) EMBODIED SERVICES PROHIBITED USES
Embodied may immediately suspend or terminate the availability of the Embodied Products and Content (and any elements and features of them) for any reason, in Embodied’s sole discretion, and without advance notice or liability.
7) OPENING ACCOUNTS / ACCESSING EMBODIED SERVICES.
eCommerce Site – You don’t have to establish an account to visit and view the eCommerce Web Site. In order to purchase the Moxie Robot, you have to establish an account in the eCommerce Site. You will provide your name, billing information and shipping address. The eCommerce Site is not designed to be used by children under 18. The Embodied Services’ (including the eCommerce Site’s) practices governing any collection and use of your personal information are disclosed in its Privacy Statement, which is available of embodied.com/pages/privacy-policy. Your decision to provide this information is purely voluntary and optional; however, if you do not consent to Embodied’s data collection policy or practices, you may not be able to interface with Moxie.
Parent App And Moxie – In order to obtain the Parent App, you go to Apple App Store or Google Play store and download the Parent App to your computing device. The Parent App may be utilized on smart phones or tablet computing devices. You have to establish your account (including an e-mail address) in the Parent App in order to interface with the Moxie. You will be asked to enter your name, your email address, child developmental goal information and/or event information (e.g., dad’s birthdate or appointments) in the Parent App.
For the email address you agree that you will not use a username that is already in use, impersonates another person, violates the intellectual property or other right of any person or entity, or is offensive. Embodied reserves the right to reject any email address for any other reason in their sole discretion. You are responsible for all activities under your account and email address, whether or not you authorize the activity. You will provide accurate, current and complete information about yourself and update it regularly. You are solely responsible for maintaining the confidentiality of your amount and for restricting access to your computing device you are using to access the Parent App so that others may not access your account using your information. If there has been a breach of security or if there is unauthorized use of your email address or account, you must notify Embodied immediately. You shall not sell, transfer or assign your account or any account rights.
GRL SITE – If a parent purchases Moxie, a parent or child (after Embodied receives parental consent) may be provided with access to the GRL Site. A persistent cookie will keep track who has logged into the account and allows you child to not have to go through the connection process repeatedly.
You may also visit the GRL Site without purchasing Moxie to learn about characters, to play a game and to engage in limited activities. If you do not own a Moxie and are just visiting the GRL Site, the persistent cookie is not utilized.
Embodied will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
We also reserve a more general right to terminate your account or suspend your account, all in our sole discretion and without advance notice or liability.
Handling of Moxie - Moxie is an electronic device designed to be utilized by children. As such, Moxie should be handled gently and with care. Please refer to the Section entitled “Caring for Your Moxie” in the Quick Start Guide and the User Manual for more detailed instructions.
8) THIRD-PARTY LINKS
Certain content, products and services available via our Service may include materials from third-parties.
Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party's policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.
The eCommerce site is hosted on Shopify Inc. servers. They provide us with the online eCommerce platform that allows us to sell our Embodied Services (e.g., including Moxie) to you.
9) CUSTOMER SERVICE
If you have any customer service questions related to Embodied Services, then as a resource please contact Embodied at:
10) PROCEDURE FOR ALLEGING COPYRIGHT INFRINGEMENT
Embodied will respond to notices of copyright infringement that comply the U.S. Digital Millennium Copyright Act (“DMCA”). If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it in the Embodied Services, a written notice may be sent that includes the following information: 1) a subject line stating "DMCA Copyright Infringement Notice"; 2) a description or identification of the copyrighted work or works that you claim is allegedly infringed; 3) a description of where (e.g., URL or portion of Embodied Services) the material that you claim is allegedly infringed is located to allow us to locate and identify the material; 4) your full name and preferred contact information (address, email, telephone number); 5) a statement by you, made under penalty of perjury that the information in the above-described is accurate and that you own the copyright in the material (or that you are a representative of the copyright owner and authorized to act on the copyright owner’s behalf; and 6) your physical signature, or, if sent within an electronic communication (e.g., email) your typed name followed by //s//, which will serve as the electronic signature.
Embodied will only respond to DMCA Notices that it receives by mail or e-mail at the addresses below:
385 E. Colorado Blvd., Suite 110
Pasadena, CA 91101
Attention: General Counsel
Embodied may elect or decide to not respond to DMCA Notices that do not comply with all of the foregoing requirements. In addition, sometimes it is difficult to determine if the copyrighted material has been infringed. Embodied may elect or decide to remove allegedly infringing material that comes to attention via notices even if the notices do not comply with the DMCA provisions.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Embodied may send the information that you provide in your DMCA Notice to the person who provided the allegedly infringing work. In response, that person may send Embodied a DMCA Counter Notification.
DMCA Counter-Notification. If a work that you provided to Embodied is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send Embodied a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information: (1) a subject line that says: "DMCA Counter-Notification"; (2) a description of the material that has been removed and the location at which the material appeared before it was removed (e.g., URL or other identifier); (3) a statement, under penalty of perjury, that you have a good faith belief that the material was removed or as a result of mistake or misidentification of the material and/or a verification of ownership of the material; (4) your full name and preferred contact information (address, telephone number, e-mail address); (5) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and (6) your physical signature, or, if sent within an electronic communication (e.g., email) your typed name followed by //s//, which will serve as the electronic signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than 5 and not more than 7 business days following receipt of the DMCA Counter-Notification.
However, we will not do this if the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Embodied Services and Embodied receives notice of the lawsuit.
Embodied may forward the DMCA Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
11) PROCEDURE TO ALLEGE INFRINGEMENT OF OTHER INTELLECTUAL PROPERTY
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it on the Embodied Services, then you may send us a written notice to one of the addresses set forth above that includes all of the following: (a) subject line that says: “Intellectual Property Infringement Notice”; (b) a description of the intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing or is the subject of infringing activity is located (e.g., URL); (d) your full name and preferred contact information; (e) a good faith statement by you, made under penalty of perjury, that the use of the material allegedly is not authorized by the owner and that you are the owner’s representative or agent or the owner and authorized to communicate on behalf of the owner; and (f) your physical signature and an electronic signature, as described in section 10 above.
Embodied will act on such notices in our sole discretion. Any user of the Embodied Services that fails to respond satisfactorily to us with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
12) DISCLAIMERS AND LIMITATIONS ON LIABILITY
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE EMBODIED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
WE DO NOT WARRANT THAT THE RESULTS OR PERFORMANCE THAT MAY BE OBTAINED FROM THE USE OF THE EMBODIED SERVICES WILL BE ACCURATE OR RELIABLE.
YOU AGREE THAT FROM TIME TO TIME WE MAY REMOVE PARTS OR PORTIONS OF THE EMBODIED SERVICES FOR INDEFINITE PERIODS OF TIME OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO YOU.
YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE EMBODIED SERVICES IS AT YOUR SOLE RISK. THE EMBODIED SERVICES AND ALL PRODUCTS AND SERVICES DELIVERED TO YOU (EXCEPT AS EXPRESSLY STATED BY US) PROVIDED 'AS IS' AND 'AS AVAILABLE' FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
IF YOU NEED HELP, PLEASE REFER TO THE SUPPORT OR CUSTOMER SERVICE SECTION OF THE EMBODIED SERVICES FOR ASSISTANCE IF ANY PART OF THE EMBODIED SERVICES IS NOT WORKING PROPERLY. EMBODIED WILL NOT BE LIABLE FOR DAMAGE WHICH COULD HAVE BEEN AVOIDED BY FOLLOWING EMBODIED’S ADVICE. EMBODIED WILL NOT BE LIABLE FOR YOU NOT FOLLOWING INSTALLATION INSTRUCTIONS OR HAVING THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY US.
EMBODIED SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE FOR CAUSES BEYOND EMBODIED’S CONTROL OR OTHER DAMAGE WHICH DOES NOT RESULT FROM A BREACH OF EMBODIED’S OBLIGATIONS.
EMBODIED WILL NOT BE RESPONSIBLE FOR ANY LACK OF FUNCTIONALITY OR FAILURE TO ANY LOSS OF CONTENT OR DATA THAT IS DUE TO YOUR EQUIPMENT, DEVICES, OPERATING SYSETM OR NETWORK CONNECTION (INCLUDING INTERNET CONNECTION), ANY FAILURE TO COMPLY WITH COMPATIBILITY REQUIREMENTS OR ANY CONSEQUENCES RELATED THERETO.
EMBODIED WILL NOT BE LIABLE FOR BUSINESS LOSSES BECAUSE EMBODIED’S PRODUCTS ARE SUPPLIED FOR DOMESTIC AND PRIVATE USE. THEREFORE, EMBODIED WILL NOT BE LIABLE FOR PRODUCTS FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE. THEREFORE, EMBODIED WILL NOT HAVE ANY LIABILITY FOR ANY BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITY, AND/OR LOSS OF BUSINESS.
IN NO CASE SHALL EMBODIED, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OF ANY OF THE EMBODIED SERVICES OR THE MOXIE ROBOT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE EMBODIED SERVICE OR ANY MOXIE ROBOT, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE EMBODIED SERVICES, THE MOXIE ROBOT OR ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE EMBODIED SERVICES OR THE MOXIE ROBOT, EVEN IF ADVISED OF THEIR POSSIBILITY. EMBODIED SHALL NOT BE HELD LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND OUR REASONABLE CONTROL. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
IN NO EVENT, SHALL EMBODIED’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE AMOUNT YOU PAID FOR THE EMBODIED SERVICES (OR PRODUCTS) ON WHICH THE CLAIM IS BASED. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY PRODUCT WARRANTY THAT IS PROVIDED BY THE COMPANY AS THE SELER OF A PHYSICAL PRODUCT.
When you purchase Moxie, you utilize the eCommerce Site to register your subscription account. You will enter your billing information during a checkout process, but you will not be charged any fees for the first twelve months from your subscription activation date (which is the day you register your subscription account, activate Moxie or start using the Parent App).
After the initial 12 months have expired, you can purchase a subscription. You will be contacted approximately one to two months before expiration of the initial subscription to purchase the subscription. The subscription includes unlimited cloud computing resources, regular updates of new content and features, key insights and tips for interacting with Moxie in the Parent App, Moxie Mission Packs (monthly mailings of printed activities and fun items for kids) and full access to the GRL site (including a gated portion of the GRL Site).
If you do not renew the subscription, you will not be able to utilize the online Embodied Services, such as automatic speech recognition.
YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSORS IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OF YOUR CREDIT INFORMATION.
Cancellation of Subscription. If you terminate your subscription, you may use your
subscription until the end of the then-current period in your subscription and your subscription will not be renewed after that period expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
Suspension/Termination. Embodied may immediately terminate or suspend
your account, and all or a portion of your subscription, without notice if: (a) your
If Embodied terminates or suspends your subscription, your license to use any software or
content provided in connection with the subscription is also terminated or suspended. If the subscription has been terminated, Embodied reserves the right to immediately, or at its discretion, delete all data, files and other information stored in your account without further notice. After your subscription has been terminated or suspended, if you wish to resume your subscription, you may be charged a restoration fee. This fee is in addition to any subscription fee.
Amount to be Charged. Individual with subscriptions agree to pay the monthly fee specified when you purchased your subscription (plus any applicable taxes and other charges). If the amount to be charged varies from the amount you pre-authorized (other than due to the imposition of, or change in, applicable sales tax), you have the right to receive, and we will provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction.
Any agreement you have with your payment provider governs your use of your specified payment method. Your failure to terminate and/or continued use of your subscription reaffirms that we are authorized to charge you for that subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you if for some reason the card issuer does not make any payment.
Third-Party Payment Processors. You agree to pay us, through our payment processors, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase. You agree to make payment using the payment method you provide when you set up your account. We reserve the right to correct, or to instruct our payment processors to correct, any errors or mistakes, even if payment has already been requested or received.
Bill Inquiries and Refunds. If you believe you have been billed in error for a subscription, please notify us within 60 days of the billing date by contacting customer support at (855) 945-3411 or emailing firstname.lastname@example.org. After 60 days, Embodied will not issue refunds or credits after the expiration of this 60-day period, except where required by applicable law.
14) UNSOLICITED COMMENTS
If you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise, without a request from us (collectively, 'unsolicited comments'), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. Embodied is and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
You agree that your unsolicited comments will not violate any right of any third-party, including copyright, trademark, privacy, personality or other personal or proprietary right. You further agree that your unsolicited comments will not contain libelous or otherwise unlawful, abusive or obscene material, or contain any computer virus or other malware that could in any way affect the operation of the Service or any related website. You may not use a false e-mail address, pretend to be someone other than yourself, or otherwise mislead us or third-parties as to the origin of any unsolicited comments. You are solely responsible for any unsolicited comments you make and their accuracy. We take no responsibility and assume no liability for any unsolicited comments posted by you or any third-party.
15) ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on the Embodied Services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Embodied Services or on any related website is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Embodied Services or on any related website, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Embodied Services or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
If any provision of these Terms of Service shall be held by a court of competent jurisdiction to be illegal, invalid, void, unlawful unenforceable, the Parties hereby authorize the court to modify such provision to the minimum extent necessary to effectuate the Parties’ intentions and the remaining provisions shall be in full force and effect.
18) DISPUTE RESOLUTION
ANY DISPUTE THAT MAY OCCUR BETWEEN YOU AND EMBODIED, EXCEPT FOR A SMALL CLAIMS DISPUTE, MAY BE SUBJECT TO A CLASS ACTION WAIVER. YOU AGREE THAT ANY DISPUTE BETWEEN YOU AND EMBODIED IS SUBJECT TO THE PROCEDURE DESCRIBED BELOW WHICH INCLUDES BINDING ARBITRATION. PLEASE REIVEW THE AGREEMENT IN ITS ENTIRETY TO UNDERSTAND THE DISPUTE RESOLUTION AND ARBITRATION PROVISION BELOW. YOU ALSO CONSENT TO THE DISPUTE RESOLUTION PROCEDURE DESCRIBED BELOW FOR YOUR MINOR CHILD.
Procedure for Resolving Disputes
1) Try to Resolve Between Parties – If any claim or allegation or disagreement arises out of the Embodied Services, the Content, Your Unsolicited Ideas, these Terms of Service or any additional terms (collective referred to as “Dispute” or “Disputes”), or to any of Embodied Services, then you and Embodied agree to send or transmit a written notice to the other party providing a description of the Dispute along with any proposed suggestions of how to resolve the dispute. If Embodied is sending such notice, Embodied will send the notice to the latest contact information that they have. If you have not provided Embodied with contact information or the contact information is not correct, Embodied has no obligation under this section. Any notice you send should be addressed to Embodied, Inc., 385 E. Colorado Blvd., Suite 110, Pasadena, CA 91101, Attention: General Counsel. After such notice is received, Embodied and you agree to negotiate and engage in dialogue to resolve the Dispute for a period of 60 days. There is requirement that either you or Embodied to resolve this dispute on terms with respect to which you and Embodied, in each party’s sole and reasonable discretion, are not comfortable.
2) Arbitration – If the Parties cannot resolve a dispute as set forth above with the 90 days of receipt of said notice, then either Party can submit the Dispute to formal arbitration as described in detail below.
The arbitrator(s) shall follow California law and the Federal Rules of Evidence in adjudicating the Dispute. The parties waive the right to seek punitive damages and the arbitrator(s) shall have no authority to award such damages in such arbitration proceeding. In arbitration, as with a court, the arbitrator must honor the terms of this User Agreement (and any Additional Terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. The arbitrator(s) will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within thirty (30) days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction in Los Angeles County, California.
AAA procedures, rules and fee information are available at http://www.adr.gov.
LIMITED TIME TO FILE CLAIMS - TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH ABOVE) WITHIN 1 YEAR AFTER THE DISPUTE ARISES, OR THE DISPUTE WILL BE FOREVER BARRED
Injunctive Relief. The provisions above do not apply to any legal action taken by Embodied to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Embodied Services, any Content, or Unsolicited Ideas and Materials and/or Embodied’s intellectual property rights (including such Embodied may claim that may be in dispute) and/or Embodied’s operations.
Small Claims. Notwithstanding anything described above, either party may bring a qualifying claim or Dispute in small claims court.
No Class Action – Disputes will only be handled individually and will not be consolidate with any other proceedings and/or disputes that involve any claim or controversy of any other party. If however, a court of competent jurisdiction or any arbitrator holds this restriction to be unenforceable or unconscionable, then our provision requiring arbitration does not apply and the Dispute must be brought exclusively in the court pursuant to the provision below.
Federal and State Courts in Los Angeles. Except to the extent that arbitration is required as described above, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute may only be instituted in state or federal court in Los Angeles County, California. Accordingly, you and Embodied consent to the exclusive personal jurisdiction and venue of such courts for such matters.
The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
Intellectual Property Notices, Embodied Product End User License Agreement, and Open Source Legal Notices are provided at www.embodied.com/pages/legal
21) EXPORT LAWS
You agree to abide by the export laws applicable in the U.S. as well as any other applicable export laws and You agree not to transfer any of the software or code in the Embodied Services to any foreign national or national destination, which is prohibited by such laws.
You hereby certify that You are not a person with whom Embodied is prohibited from transacting business under applicable laws. Furthermore, You represent and warrant that (i) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting country”; and that (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
23) ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision.
24) GOVERNING LAW
25) NO WAIVER
27) FORCE MAJEURE
If either Party is delayed or prevented in the performance of any of its obligations under this Agreement by a Force Majeure event that Party shall not be liable for such delay or non-performance and the time for performance of the affected obligation shall be extended by such period as is reasonable to enable that Party, using all reasonable endeavors, to perform that obligation. “Force Majeure” means an act of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, or any pandemic, including without limitation the pandemic known as Covid-19.
28) CONTACT INFORMATION