TERMS OF USE

Updated August 2017

This is a binding contract between you and Anki, Inc. (with its affiliates, "Anki", "we" and "us") and describes the rules and restrictions that apply to our websites, products, and services, including the Anki OVERDRIVE and Cozmo devices and their associated applications (the "Services"). Please read these Terms carefully. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver, and resolution of disputes by arbitration instead of by litigation in court.

By using the Services, you agree to be bound these terms, the Anki Privacy Policy and Copyright Dispute Policy, as well as other rules, policies, and other terms available through the Services (collectively, "Terms"). If you do not accept the Terms, then you do not have a right to use the Services, and you may return the products if allowed under the applicable return policy. If you reside in France or Germany, some of these terms do not apply to you. Please scroll to the end of these Terms for additional terms.

1. Changes. We may introduce new features, change or limit features (including by automatic update), update or remove Content, or restrict access to parts or all of the Services, without notice to you. We reserve the right to change the Terms by displaying the updated Terms at Anki.com or within the Services. By using the Services after a change to the Terms, you agree to all of the changes. This agreement, and any disclosures we make to you through the Services or via your registered email or other communications, are considered for legal purposes to be in writing.

2. Privacy. The current Anki Privacy Policy at www.anki.com/privacy describes our collection and use of data. Some of the Services are subject to the Children's Online Privacy Protection Act. If you have questions about privacy, please contact us at privacy@anki.com.

3. Using the Services. Some of the Services may require you to sign up for an account. You promise to provide us with accurate and complete registration information, and keep your account and password secure. You're responsible for activity including any orders associated with your account. You represent and warrant that you are of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). You will use the Services only for your own internal, personal, non-commercial use, in a manner that complies with all laws that apply to you. If applicable law prohibits your use of the Services, then you aren't authorized to use the Services. We are not responsible for your using the Services in a way that breaks the law.

4. Our License to You. Subject to your compliance with these and other terms that may apply to the Services, including the Restrictions below, we grant you a personal, non-transferable, non-exclusive, non-assignable, non-sublicensable, and nonexclusive license to use our Services. This license applies to the software we provide you as part of the Services (including, for example, software in our products or that makes up our mobile applications). We reserve all rights not granted to you here. You may not resell, lease, rent, distribute, or otherwise exploit our Services, including our devices, for commercial gain unless we give express permission in writing. If you violate these Terms, the license in this section terminates.

5. Restrictions. You may not use or interact with the Services to: (a) infringe or violate the intellectual property or other rights of anyone else (including Anki); (b) violate any law or regulation, including as to export control; (c) harm, defraud, harass, threaten, or deceive others, or make contributions that are obscene or otherwise objectionable; (d) jeopardize or violate the security of Anki, the Services, or anyone else; (e) attempt to obtain the password, account, or other security information from any other user; (f) run any form of auto-responder or "spam" on the Services, or any processes that otherwise interfere with the proper working of the Services; (g) scrape or spider any page, data, or portion of the Services or Content (manually or by automated means); (h) copy or store any significant portion of the Content; or (i) decompile, reverse engineer, tamper with, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Services or use the Services to develop competing products.

6. Copyright, Trademark & DMCA. The materials displayed or performed or available on or through the Services, including text, graphics, data, software, photos, images, illustrations, logos, trademarks (collectively, the "Content"), and aspects of the Services themselves, are protected by copyright, patent, trademark and/or other intellectual property laws in the United States and in other countries. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and that you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content (which may be Anki or our licensors) or (ii) in a way that violates someone else's (including Anki's) rights.

You understand that Anki exclusively owns the Content and the Services and intellectual property in them (except that you own your User Submissions and physical hardware devices you have purchased, but not software or other materials we may license to you under these Terms even if such materials reside on your devices). You won't modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services. We reserve the right to delete or disable Content alleged to be infringing; visit anki.com/copyright-and-ip-policy to review our complete DMCA and Copyright Dispute Policy and learn how to report potentially infringing content.

7. Content You Provide. Anything you post, upload, share, store, or otherwise provide to us and/or our sites through the Services, including through our Software Development Kit ("SDK"), is your "User Submission." You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so. Some User Submissions are viewable by other users. We do not regularly review User Submissions, but reserve the right to remove or edit content you submit, including to enforce these Terms. For all User Submissions, you hereby grant Anki a license to translate, modify (for technical purposes, for example making sure your content is viewable on a mobile device), reproduce, and otherwise act with respect to such User Submissions, in each case to enable us to operate and improve your experience and the Services. This is a license only – your ownership in User Submissions is not affected. The licenses you grant to us (and by extension to our users) through these Terms are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, unless the Services indicate otherwise.

8. Feedback & Public Posting; Unsolicited Ideas. If you share a User Submission in a manner that more than just you can view, then you grant Anki the license above, as well as a license to display, perform, and distribute the Content you submitted for the purpose of making it accessible to all Anki users and providing the Services necessary to do so. We do not consider unsolicited feedback, proposals, or ideas for products, services, or technology improvements. If you send us such feedback anyway through the Services and/or directly to us, you grant us all the licenses in this section, and agree that your idea is not confidential and that your submitting such feedback does not create an obligation on us to you.

9. Third Parties. Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person that originated it, and you access all such information and content at your own risk, and we aren't liable for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. The Services may also contain links or connections to third party websites or services not owned or controlled by Anki, and using the Services may require you to transact with third parties, such as for your internet connection. Anki is not responsible for these third-party services or individuals that you may interact with through the Services.

If there is a dispute between participants on this site, or between users and any third party, Anki is under no obligation to become involved. In the event that you have a dispute with one or more other users or third parties, you release Anki, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."

10. Online Orders. We reserve the right to cancel or modify orders for any reason. For example, we may refuse to ship to known freight forwarders or if we suspect fraud or abuse or any violation of these Terms. We also may change our prices (but we won’t change the price once your order has been confirmed), the availability of products, or make other updates.

11. Products Warranty. For warranty information regarding Anki-branded hardware product and accessories, please visit anki.com/returns-warranty. The warranty does not apply to software. We may not support warranty service outside of countries in which we sell and there may be different policies in your country.

12. Warranty Disclaimer. Neither Anki nor its licensors or suppliers makes any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. Use of the Services is at your own risk. EXCEPT AS OTHERWISE PROVIDED IN THE PRODUCTS WARRANTY SECTION ABOVE, THE SERVICES AND CONTENT ARE PROVIDED BY ANKI (AND ITS LICENSORS AND SUPPLIERS) ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, RELIABILITY NONINFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

13. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANKI (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF DATA OR RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES OR THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, OR (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100 OR (II) THE AMOUNTS PAID BY YOU TO ANKI IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM, OR (C) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

14. Indemnity. You agree to indemnify and hold Anki, its affiliates, officers, agents, employees, and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys' fees) arising from or in any way related to any third-party claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms.

15. Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Anki's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.

16. Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of California, without regard to the conflicts of laws provisions thereof.

17. Arbitration. PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH ANKI AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

Any dispute arising out of or relating to the subject matter of these Terms shall be finally settled by binding arbitration in San Francisco County, California. The arbitration will proceed in the English language, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. Furthermore, either you or Anki may assert claims, if they qualify, in small claims court in San Francisco County, California or any United States county where you live or work.

Any arbitration under these Terms will take place on an individual basis: class arbitrations and class actions are not permitted. YOU ACKNOWLEDGE AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU AND ANKI ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.

Both you and Anki acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, Anki's officers, directors, employees and independent contractors ("Personnel") are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

Arbitration Opt-Out: You have the right to opt out of the foregoing arbitration provision by sending written notice of your decision to opt out to Anki, Inc., 55 2nd St., 15th Floor, San Francisco, CA 94105 postmarked within 30 days of first accepting these Terms. You must include (1) your name and residence address; (2) the email address and/or telephone number associated with your account; and (3) a clear statement that you want to opt out of this Section's arbitration agreement. If you send this notice, and/or in any circumstances where the foregoing arbitration provision permits either you or Anki to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration provision will not apply to either party and both you and Anki agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively San Francisco County, California.

18. Miscellaneous. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and Anki agree that these Terms are the complete and exclusive statement of the mutual understanding between you and Anki, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Anki, and you do not have any authority of any kind to bind Anki in any respect whatsoever. Except as expressly set forth in the section regarding Apple, you and Anki agree there are no third-party beneficiaries intended under these Terms.

19. Termination. You're free to terminate your account at any time, by contacting us at www.anki.com/support/contact. We are free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Anki has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.

20. Contact. You may reach us by mail at: Anki, Inc., 55 2nd St., 15th Floor, San Francisco, CA 94105, or through our online contact form available at anki.com/support.

21. Additional Terms for French and German users. If you reside in Germany or France:

  1. Sections 10 (Orders) and 11 (Product Warranty) do not apply to you. The conditions applicable to the sale of products by Anki to you are available in the General Terms of Sale available on our website and at anki.com/warranty.
  2. Sections 16 (Choice of law) and 17 (Arbitration) do not apply to you in their entirety. Rather, the law indicated in Section 16 applies, except for mandatory rules applicable in your country. For any dispute arising out of or relating to the subject matter of these Terms related to such mandatory rules, you can contact us at the address above. If the dispute is not amicably settled, it may be decided by competent courts in your country.
  3. You are entitled to the statutory warranty rights which apply in your country.
  4. For users who reside in Germany, Section 13 (Limitation of Liability) does not apply for liability due to intentional acts or gross negligence causing injury to life, limb or health or under the Product Liability Act.
  5. Related to the preamble and Section 1 (Changes), depending on the laws in your country, we may follow a different process for notifying you of changes to these Terms and for making them effective.