Terms Of Use

GENERAL TERMS AND CONDITIONS OF BUSINESS AND CUSTOMER INFORMATION

 

1. GENERAL
Please read the following Terms of Use carefully. These Terms of Use apply to any website operated by or on behalf of FUN FACTORY CANADA, Inc. and any other sites at which this policy appears. Any such site is referred to in this Policy as the “Site.” This Site is operated by, or on behalf of, FUN FACTORY CANADA, Inc. or its affiliates or agents (“FUN FACTORY” or “we”). By using this Site, you signify your agreement to these Terms of Use) as well as the terms of our Privacy Policy which is hereby incorporated by reference into these Terms of Use. If you do not agree to these Terms of Use, please do not use this Site. We reserve the right, at our discretion, to change, modify, add to, or remove portions of these Terms of Use at any time without notice. We suggest that you review these Terms of Use periodically for changes. Your use of this Site after the posting of changes to these Terms of Use will mean you accept the changes. FUN FACTORY may also offer other services from time to time that are governed by different terms and conditions of use. Access to FUN FACTORY CANADA is restricted to individuals 18 years of age and older.

To read this document offline, you may print this page from any web browser. 

2. YOUR REPRESENTATIONS AND WARRANTIES
With respect to these Terms of Use and any other agreement that you seek to conclude through use of this Site, you represent, warrant and covenant that:

  • You are at least 18 years old (or the applicable age of majority in your jurisdiction if such age of majority is greater than 18).
  • You have the legal capacity and authority, as well as any necessary consents and permissions, to enter into such agreement.
  • You are not aware of any reason why such agreement would be unenforceable by FUN FACTORY.

3. CLAIMS & RETURNS
FUN FACTORY offers a 2-year warranty on all rechargeable and battery-powered items purchased through FUN FACTORY directly or any Authorized Re-Seller. Please note that due to the nature of our products, claims are valid due to defective items only. Warranty replacement is only valid for same model or same value replacement in the case of discontinued or out-of-stock product. FUN FACTORY does not accept returns, as items cannot be resold due to health considerations. FUN FACTORY does not offer any grace period for returns for any reason other than defect or manufacturing error. Visit the Claims & Returns page for more information on warranty coverage and placing a warranty claim.

4. MONITORING OF WEB SITE
We reserve the right to monitor any and all use of this Site. We are under no obligation to do so and assume no responsibility or liability arising from our doing so or omission to do so. We may monitor use of this Site to evaluate quality of service, compliance with these Terms of Use, the security of the Site, or for other lawful reasons. FUN FACTORY reserves the right to cooperate fully with law enforcement authorities or court orders directing or requesting us to disclose the identity of anyone who may use this Site for an improper purpose. We may also disclose such information if we have a good faith belief that such disclosure is reasonably necessary to protect the rights, property or personal safety of FUN FACTORY, our third party licensors, customers or the public. You agree that you will not be entitled to any cause of action or other right with respect to us concerning such monitoring activities.

5. THIRD-PARTY CONTENT
Please exercise discretion while browsing the Internet or using this Site. You should be aware that while using this Site you could be directed to other web sites by links and other features found on this Site. If you click on those links or other features, you may be visiting a web site that is not owned or operated by FUN FACTORY and over which FUN FACTORY has no control. For example, if you click on a banner advertisement, the click may take you to the web site of a company that is not related to FUN FACTORY and over which FUN FACTORY has no control. This includes links from advertisers, sponsors, content partners and other users that may use our logo(s) as part of a co-branding or affiliate agreement.

FUN FACTORY is in no way responsible for the content or availability of information found on any web site owned by a third party that may be linked to this Site by a hyperlink, whether such hyperlink is provided by FUN FACTORY or by a third party. By providing access to third party web sites or advertisements, FUN FACTORY is not endorsing the products or services provided by the owner or operator of such web sites. Consequently, we will not be liable or responsible for the accuracy, relevancy, reliability, copyright compliance, legality or decency of material contained in third party web sites linked to this Site. We cannot ensure that you will be satisfied with any products or services you purchase from a third party web site that links to or from this Site or that you purchase through third party advertising or content on this Site. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to the products, services and content of third party web sites, including third party web sites accessible by links from this Site. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction.

6. RESTRICTIONS ON USE
You may not do any of the following directly or indirectly:

  • Use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any transaction conducted on this Site.
  • Take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
  • Use devices (including software) that are designed to probe, scan, or test the vulnerability of any system or network related in any way to this Site.
  • Transmit to this Site, or use this Site, to transmit any material that contains viruses or any other computer code, files or programs that might interrupt, limit or interfere with the functionality of any computer software or hardware of telecommunications equipment.
  • Redeliver any of the pages, text, images, or other content of this Site using "framing" technology.
  • Collect or store personal data about other visitors to this Site.
  • Create a link from a web site to any page of this Site unless the user or the operator of the other web site has executed our then standard agreement for the granting of permission to establish such a link.

7. CONFIDENTIALITY
To the extent we have assigned to you an account through this Site, you are entirely responsible for maintaining the confidentiality of your account and for all activities that occur under your account.

8. DISCLAIMER
The materials on this site are provided "as is" and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, we disclaim all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. We do not warrant that the functions on this site will be uninterrupted, error-free or secure, that defects will be corrected, or that this site or the servers that make such materials and functions available are free of viruses or other harmful components. We do not warrant or make any representations regarding the use or the results of the use of the materials on this site in terms of their timeliness, correctness, accuracy, reliability, or otherwise. You assume the entire cost of all necessary maintenance, servicing, repair, or correction to the equipment and software you use to access this web site. Applicable law may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.

We make every effort to ensure that the information on this website is accurate. However, we do not take responsibility or guarantee the accurateness, completeness or timeliness of the data and facts found here. FUN FACTORY is not liable for any inaccuracies and visitors should treat all information on an 'As-Is' basis without any representation or warranty.

9. INDEMNIFICATION
You are to indemnify, defend and hold FUN FACTORY and our affiliates, officers, directors, owners, agents, information providers, licensors and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liabilities and costs (including reasonable attorneys' fees) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of these Terms of Use (or claims arising from your account). You agree to use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You shall not enter into any settlement agreement which affects the rights of FUN FACTORY without our prior written approval.

10. LIMITATION OF LIABILITY
Under no circumstances, including, but not limited to, negligence, shall we be liable to you or any third parties for any direct, indirect, incidental, special, consequential, punitive or exemplary damages that result from the use of, or the inability to use, this site or materials or functions on this site, or from any damage or loss, interruptions, deletions of files, errors, defects, delays in performance of the site, regardless of the claim as to the nature of the cause of action, even if we have been advised of the possibility of such damages. Applicable law may not allow the limitation or exclusion of liability of incidental or consequential damages, so the above limitation or exclusion may not apply to you. In no event shall our total liability to you for all damages, losses, and causes of action whether in contract, tort (including, but not limited to, negligence, or otherwise) exceed the amount paid by you to FUN FACTORY CANADA, if any, for accessing this web site.

11. LIABILITY FOR LINKS
The external links connect to outside providers. The individual providers are responsible for their content. We have not adopted their content as our own. We have no control over the content of the links referred to on our website. We have not adopted them as our own, expressly distant ourselves from their content, and refuse any responsibility for their content.

The outside sites have been checked so far as it is possible for criminal content or other legal violations. Should any legal violations become apparent, the links will be removed immediately.

12. COPYRIGHT AND TRADEMARKS
All contents and designs of the Web site are copyrighted unless otherwise noted and may not be used except as provided herein and without the express written permission of FUN FACTORY CANADA. The data and information included here, as well as images, may not be used without prior written consent of FUN FACTORY CANADA. Images of people or places displayed on the Web site are either the property of, or used with permission by, FUN FACTORY CANADA.

The use of these images by you is prohibited unless specifically permitted by the Terms and Conditions or by specific permission provided elsewhere on the Web site. Unauthorized use of the images may violate copyright, trademark, privacy and/or publicity laws as well as communications regulations and statutes.

13 CUSTOMER CARE
FUN FACTORY CANADA will make every effort to respond to your customer queries, feedback and order information as quickly as possible. However, there may be delays in our response time to your request; order processing and customer service responses are attended to only during business hours, Monday through Friday. Please submit any requests by using the email forms located on our 'Contact Us' page, or by emailing contact@funfactory.com.

14. PROMOTIONS TERMS AND CONDITIONS
Promotions are, but are not limited to: Sales, Deals, Kits, Coupons and Discount Codes. We may introduce other sales incentives intermittently, which will also fall under these terms and conditions.

Only one promotion can be applied to each product purchased from the website. Please select the most effective option for your purchases.

Expiration date. All promotions have an expiration date and time. You must place your order before the expiration date / time. We do not guarantee promotions after the expiration date, nor for out-of-stock or items of limited availability.

15. JURISDICTIONAL ISSUES
This Site is controlled and operated by or on behalf of FUN FACTORY and its affiliates. We make no representation that materials or products offered on this Site are appropriate or available for use in any particular location. Those who choose to access this Site do so on their own initiative and are responsible for compliance with all applicable national and local laws. We may disclose user information when required by law or in the good-faith belief that such action is necessary in order to conform to the edicts of the law or comply with a legal process served on our website.

16. TERMINATION AND SUSPENSION
We may terminate or suspend your access to all or any part of this Site immediately and without notice if in our sole discretion you fail to comply with any term or provision of these Terms of Use or any other term or condition of use posted on this Site, including the infringement of our intellectual property rights as set forth in our Intellectual Property Notice or the intellectual property rights of third parties.

17. ADDITIONAL TERMS REGARDING PURCHASES
The following terms apply to all purchases from FUN FACTORY made through this Site unless superseded by inconsistent terms in a purchase order form:

  1. By placing an order, you certify that you are able to pay for the item(s) in your order.
  2. By placing an order though this Site you agree to be bound by the conditions of sale included in the item's description (including, without limitation, payment method and acceptable ship-to address).
  3. You are responsible for the accuracy of the information provided on your purchase order.
  4. We may reject your order at our discretion and reserve the right to cancel any order or refuse service to anyone at any time. If we cancel your order after we have charged you for your order, we will refund your credit card the amount charged as soon as practical.
  5. Due to some country, state and county laws, we may not be able to ship certain merchandise to your address.
  6. We reserve the right to add and/or remove items from the Site, for any reason, at any time.
  7. We reserve the right to limit quantities of items sold.
  8. Unless otherwise stated, all prices are quoted in U.S. Dollars.
  9. In addition to the shipping and handling charges we add at the time of checkout, you are solely responsible for any and all duties, taxes, tariffs and/or levies, which may be incurred in connection with the shipment of your ordered item(s), regardless of when such additional charges are assessed.
  10. We use our best efforts to ensure that the correct price is posted for each item on the Site. If, however, an item's correct price is lower than our stated price, we will charge the lower amount and ship you the item. If an item's correct price is higher than our stated price, we will, at our sole discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
  11. Products available from the Site may be advertised on third party shopping websites. We are not responsible for any information on such shopping websites, or for any differences which may exist between information found on such third party sites and information on this Site. In the event that a difference exists, information found on this Site governs your purchase from this Site.
  12. All purchases from this Site are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery of the items to the carrier.
  13. No product purchased from this Site may be returned except in certain limited cases that may be specified in the purchase order. See Claims & Returns for full warranty and return information.
  14. Attempts to stop payment on non-returnable items will be vigorously opposed by FUN FACTORY to the fullest extent of the law. In the event that any such action results in a judgment in our favor, we retain the right to recover, and you will be responsible for paying our reasonable attorneys' or related fees.

18. NOTICES AND ELECTRONIC COMMUNICATIONS
You agree to be bound by any affirmation, assent or agreement you transmit to this Site, including any consent you give to receive communications from us solely through electronic transmission. You agree that, when in the future you click on an "I agree," "I consent" or other similarly worded "button" or entry field on this Site with your mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.

FUN FACTORY will provide notices to you with respect to these Terms of Use by sending a letter, facsimile transmission or e-mail using the latest information we have retained in our business records. You may send notice to FUN FACTORY by letter, facsimile or e-mail to:

FUN FACTORY CANADA, Inc.
3605 W. Pacific Ave. Burbank,
CA 91505
Tel: (818) 861-7600
E-Mail: contact@funfactory.com

Either of us may change the address to which notice is to be sent by written notice to the other pursuant to the provisions of this section. Please be aware that e-mails may be blocked by spam filters and similar software and that it may be necessary to confirm delivery by other means.

19. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
FUN FACTORY CANADA, Inc. (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

19.1 User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply.

19.2 User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.

19.3 Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these terms and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs.

YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.

19.4 Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing and sale of digital and physical products, services, and events.

19.5 Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.

19.6 Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at customerservice@funfactory.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

19.7 MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.

19.8 Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

19.9 Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.

19.10 Age Restriction: You may not use of engage with the Platform if you are under eighteen (18) years of age. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of eighteen (18) years, and are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

19.11 Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

  • Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
  • Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
  • Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
  • Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
  • Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
  • Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

19.12 Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Burbank, California before one arbitrator.

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which FUN FACTORY Inc. ’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

19.13 Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.

20. MISCELLANEOUS
These Terms of Use shall be governed by and construed in accordance with the laws of the State of California and are subject to applicable copyright and intellectual property laws, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to these Terms of Use shall be filed only in the state or federal courts located in Los Angeles County, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

These Terms of Use, the Privacy Policy and any other terms referenced in these Terms of Use constitute the entire agreement between us with respect to your access and use of this Site and supersede all prior or contemporaneous agreements (whether oral, written or electronic) between us with respect to this Site. If any of the provisions of these Terms of Use are determined to be invalid or unenforceable, then each invalid or enforceable provision will be construed in a manner consistent with applicable laws to reflect, as nearly as possible, our original intentions, and the remaining provisions shall remain in full force and effect.

A printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Use to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All agreements, notices, disclosures and other communications between us that are electronic in form satisfy any legal requirement that such communications be in writing.

FUN FACTORY may assign these Terms of Use (i) to any of its affiliates, (ii) to the surviving entity in the event of a merger, acquisition, or the sale of all or substantially all of the assets of FUN FACTORY or (iii) in connection with the sale of this Site or the business unit associated with this Site.

21. RESPONSIBLE FOR CONTENT OF DOMAIN:
us.funfactory.com
FUN FACTORY CANADA, Inc.
3605 W Pacific Ave
 Burbank,
CA 91505
Tel.: (818) 861-7600
E-Mail: contact@funfactory.com