Terms & Conditions
- Privacy. Please read our privacy policies. They also govern your use of this website and our use of information and data.
- Intellectual Property. "MindWare", "Brainy Toys for Kids of All Ages" and other marks indicated on our site are trademarks owned by or licensed to Brainy Toys, Inc. All content on this website, including, without limitation, the text, graphics, website design, icons, and images, is the property of or licensed to Brainy Toys, Inc. and Brainy Toys, Inc. owns or licenses the copyrights and trade dress rights in the content, the selection, arrangement and compilation thereof. Brainy Toys, Inc. grants you a limited license to make personal use of this website. The license permits you to download and save a single copy of pages on this website for your own personal and non-commercial use, but any other reproduction, copying, modification, redistribution, or republication of any of the content of this website in any manner without the express written consent of Brainy Toys, Inc. is strictly prohibited. You are also prohibited from using this website or any content for any resale or commercial purpose or any exploitation of any part of the content of this website for the benefit of any other merchant.
- Intellectual Property. "Fun Express" and other marks indicated on our site are trademarks owned by or licensed to Fun Express LLC. All content on this website, including, without limitation, the text, graphics, website design, icons, and images, is the property of or licensed to Fun Express LLC and Fun Express LLC owns or licenses the copyrights and trade dress rights in the content, the selection, arrangement and compilation thereof. Fun Express LLC grants you a limited license to make personal use of this website. The license permits you to download and save a single copy of pages on this website for your own personal and non-commercial use, but any other reproduction, copying, modification, redistribution, or republication of any of the content of this website in any manner without the express written consent of Fun Express LLC is strictly prohibited. You are also prohibited from using this website or any content for any resale or commercial purpose or any exploitation of any part of the content of this website for the benefit of any other merchant.
- Intellectual Property. "Oriental Trading", "MarryMe", "CustomFun365", "Fun365" and other marks indicated on our site are trademarks owned by or licensed to OTC Direct, Inc. All content on this website, including, without limitation, the text, graphics, website design, icons, and images, is the property of or licensed to OTC Direct, Inc. and OTC Direct, Inc. owns or licenses the copyrights and trade dress rights in the content, the selection, arrangement and compilation thereof. OTC Direct, Inc. grants you a limited license to make personal use of this website. The license permits you to download and save a single copy of pages on this website for your own personal and non-commercial use, but any other reproduction, copying, modification, redistribution, or republication of any of the content of this website in any manner without the express written consent of OTC Direct, Inc. is strictly prohibited. You are also prohibited from using this website or any content for any resale or commercial purpose or any exploitation of any part of the content of this website for the benefit of any other merchant.
- Acceptance and Delivery. We shall not be responsible for any delay in our performance beyond our control or beyond the control of our suppliers. The parties agree that, unless otherwise agreed to in writing and signed by both parties, shipping dates are approximate and that time is not of the essence. All orders by you constitute offers to purchase which are subject to acceptance or rejection by us in Omaha, Nebraska and any contract for the sale of goods by us is formed and performed in Nebraska. Our acceptance of any order from you is expressly conditional upon the terms and conditions set forth herein and we expressly limit our acceptance of your order to such terms and conditions. Any additional or different terms proposed by you, whether oral, written or electronic are expressly rejected. Notwithstanding any other quoted delivery time, we shall ship merchandise ordered by you within 180 days or cancel the order for such merchandise. Unless and until you cancel an order, you consent to the backorder or delay in shipping of merchandise of up to 180 days. If an item is backordered, you may cancel such order at any time by providing notice of cancelation to us.
- Payment Terms. Payment terms shall be governed by the terms on the packing slip or invoice and the credit terms extended by us, if any. Any such credit terms may be revoked by us at any time. Payment shall be due and payable on the date so specified. Past due balances remaining unpaid will be subject to a delinquency charge at the rate of 1½ percent per month or the maximum rate permitted by law, whichever is less; and you shall pay all our costs of collection of past due amounts, including but not limited to attorney fees and court costs. If credit terms are extended to you, you hereby grant a security interest in the merchandise purchased by you and all proceeds from the sale or disposition of such merchandise and appoint us as your attorney-in-fact to execute on your behalf any Uniform Commercial Code financing statements we deem reasonably necessary to perfect our security interest. You agree to pay $40.00 per check on all returned or insufficient funds checks. We agree and acknowledge that you tender payment for each order and we are authorized to charge your credit card or other charge account (whether we are or a third party is the creditor) only as of the day we ship the order and only in respect to the merchandise shipped. We have no authorization or right to payment prior to the day we ship the merchandise ordered by you.
- Warranty and Risk of Loss. We shall, at our election, either repair, replace, or refund the purchase price, exclusive of shipping and handling charges, for any merchandise which is defective in workmanship or material and for which you make a claim within five (5) days after receipt of the merchandise. When making such a claim, you must submit both the original packing slip and the defective merchandise itself (or a sample thereof), unless these conditions are waived by us in writing. This paragraph constitutes our sole obligation as to the merchandise, and you acknowledge that this paragraph sets forth your exclusive remedy for any breach of warranty or other duty related to the merchandise or quality thereof. Any refund for merchandise shall not include shipping and handling, unless otherwise agreed by us in writing. At our discretion, we may charge a restocking fee, not to exceed twenty-five percent (25%) for returned merchandise. Title to the merchandise passes to you at and you bear all risk of loss from the time the merchandise is loaded onto common carrier to be shipped to you, regardless of whether we pay freight. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WE MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OR WITH RESPECT TO ANY APPROVALS, CHARACTERISTICS, CERTIFICATIONS, INGREDIENTS, BENEFITS, USES, STANDARDS, QUALITY OR GRADE OF ANY MERCHANDISE, OR ARISING BY CUSTOM OR TRADE USAGE AND, SPECIFICALLY, MAKE NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE MERCHANDISE ARE HEREBY SUPERCEDED, EXCLUDED AND DISCLAIMED. THE EXPRESS WARRANTY CONTAINED IN THIS PARAGRAPH CONSTITUTES THE SOLE AND EXCLUSIVE WARRANTY MADE BY US AND IS IN LIEU OF ALL OTHER WARRANTIES. IN NO EVENT SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, EVEN IF WE ARE ADVISED OF THE POSSIBILITY OF THE SAME IN ADVANCE. OUR AGGREGATE LIABILITY IS LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU.
- Nonwaiver of Default. Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by you, we may decline to make further shipments without in any way affecting our rights under such order. If, despite a default by you, we elect to continue to make shipments, or accept further orders from you, such action(s) shall not constitute a waiver of any default by you, or in any way affect our legal or equitable remedies for any such default, or of any default at any prior or subsequent time. Any refund, credit, gift certificate or discount due you may be offset against amounts owed to us.
- Personalized Product. If your order includes personalization of product or the printing or other reproduction of trademarks, service marks, trade names, logos, messages or business symbols ("Marks"), you hereby grant to us the non-exclusive right and license to use such Marks on the products and to cause the products to be produced with the Marks. You further grant permission and consent to our use of a photograph or other likeness of the finished products for purposes of advertising or promoting our business relating to such personalization production work and merchandise sales. We shall have no right, title or other interest in the Marks except as expressly granted herein. You represent and warrant that you own the Marks and are authorized to license the Marks to us. You agree to indemnify and hold harmless us from any loss, liability, damage, claims, demands, actions, costs or expense of any nature (including attorney fees) arising out of or in any manner connected with your or our use of the Marks. We reserve the right to reject or rescind any order for personalized product in our sole discretion.
- Compliance with Laws and Indemnification. If you intend to resell, distribute or export any product, you agree to bear all responsibility for compliance with the laws, rules and regulations of the jurisdiction in which the product is resold or to which the product is distributed or exported, and you agree to indemnify, defend and hold us harmless from and against any and all costs, damages, liability, fines, penalties and expenses (including attorney fees) arising out of any such resale, distribution or exportation.
- E-Commerce Reselling. In order to protect and preserve the goodwill and integrity of our brand, our customers' satisfaction, and quality assurance, the resale of our products on amazon.com, walmart.com and other third-party ecommerce platforms by you, your affiliates or any other reseller is prohibited unless we consent to such resale in writing. Any such resale activity without our prior written authorization will be regarded by us as, inter alia, infringement or misappropriation of our trademarks, trade dress, copyrights, and other intellectual property and a deceptive trade practice, and we reserve the right to exercise all rights, remedies and measures available in the event of a violation of this paragraph.
- Electronic Communications. WHEN YOU PROVIDE US WITH YOUR EMAIL ADDRESS OR TELEPHONE NUMBER, SEND US EMAILS OR VISIT OUR WEBSITE OR SOCIAL MEDIA CHANNELS, YOU ARE COMMUNICATING WITH US ELECTRONICALLY AND CONSENT TO RECEIVE COMMUNICATIONS FROM US ELECTRONICALLY. WE MAY COMMUNICATE WITH YOU BY TELEPHONE, EMAIL, TEXT, FACSIMILE, SOCIAL MEDIA OR BY POSTING NOTICES ON OUR WEBSITE. YOU EXPRESSLY CONSENT TO RECEIVE ANY SUCH COMMUNICATIONS AND AUTHORIZE US TO DELIVER OR CAUSE TO BE DELIVERED ADVERTISEMENTS OR TELEPHONE MESSAGES USING AUTOMATIC DIALING SYSTEMS OR PRERECORDED VOICE TO THE TELEPHONE NUMBERS YOU PROVIDE, AND YOU HEREBY WAIVE ANY CLAIMS BASED ON SUCH COMMUNICATIONS. YOU AGREE THAT ALL NOTICES, DISCLOSURES, AGREEMENTS OR OTHER COMMUNICATIONS WE PROVIDE ELECTRONICALLY SATISFY ANY LEGAL REQUIREMENT THAT SUCH COMMUNICATIONS BE IN WRITING.
- International Trade. If you are purchasing merchandise for delivery or importation to a country other than the United States, you are solely responsible for and will comply with all applicable laws, rules, regulations, and treaties of the United States and the jurisdiction of the destination of the merchandise in connection with the transportation, exportation, importation, delivery, distribution and resale of the merchandise. You are also solely responsible for and shall obtain all certifications, declarations, accreditations, registrations, tests, licenses, permits, inspections, or similar requirements of any jurisdiction of the destination of the merchandise and shall bear all costs and expenses related thereto and shall bear all costs and expenses relating to any taxes, duties, levees, or assessments associated with the transportation, exportation, and importation of the merchandise. We make no representations or warranties with respect to the foregoing or that the merchandise is suitable for or will comply with applicable laws of any jurisdiction.
- California Prop 65 Compliance and Notice. If you are a retail seller of consumer products and intend to resell any product in California or to California residents we provide this notice: THE PACKING SLIP OR INVOICE ACCOMPANYING THE SHIPMENT OF PRODUCT PROVIDES INFORMATION REGARDING WHICH, IF ANY, PRODUCTS WE SHIPS TO YOU MAY RESULT IN EXPOSURE TO ONE OR MORE OF THE PROP 65 LIST OF CHEMICALS, INCLUDING THE EXACT NAME OR DESCRIPTION OF THE PRODUCT, AND INCLUDES THE PROP 65 WARNING NECESSARY FOR LABELING, SHELF SIGNS, TAGS OR OTHER WARNING METHOD FOR RETAIL SALE OF THE PRODUCT. OUR CONFIRMATION OF DELIVERY OF THE SHIPMENT TO YOU CONSTITUTES CONFIRMATION OF RECEIPT OF THIS NOTICE BY YOU UNLESS YOU NOTIFY US IN WRITING WITHIN 15 DAYS OF THE DATE OF ANY SUCH SHIPMENT. YOU UNDERSTAND AND AGREE THAT IF YOU INTEND TO RESELL ANY OF THE PRODUCTS YOU ARE SOLELY RESPONSIBLE FOR THE PLACEMENT AND MAINTENANCE OF WARNING MATERIALS, INCLUDING WARNINGS FOR PRODUCTS YOU SELL OVER THE INTERNET. You agree to provide us with written notice prior to placing any order if you intend to distribute any product into the state of California and acknowledge and agree that any such distribution of product into the state of California may require appropriate Proposition 65 (Title 22 of the California Code of Regulations) warning labels. If you fail to provide such notice or fail to provide appropriate Proposition 65 warnings and distributes any product into the state of California, you agrees to indemnify, defend and hold us harmless from and against any and all costs, damages, liability and expenses (including attorney fees) arising out of any alleged Proposition 65 violations.
You represent and warrant that the Content you post or submit is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights (including publicity rights), or otherwise injurious to third parties or objectionable, and that you will indemnify us for all claims resulting from Content you supply. We take no responsibility and assume no liability for any Content posted by you or any third party.
You understand and agree that we do not necessarily pre-screen or monitor any user Content but may prescreen, monitor or review after initial posting user Content for a variety of reasons, including, without limitation, compliance with these terms. We reserve the right, but have no obligation, to remove or edit Content that violates these terms, but we do not regularly review posted Content.
- OTC+ Marketplace.We provide a platform using certain services and technology (including using service providers not affiliated with us) to permit third parties (“OTC+ Merchants”) to sell their products on our website and to ship their products directly to you using the platform we provide (the “OTC+ Marketplace”). We will process your payment for products you purchase from OTC+ Merchants and we will handle any payment-related questions, refunds, and credits, as well as other customer service matters. OTC+ Merchants will not have access to your payment information, but OTC+ Merchants will have your name, address and contact information in order to fulfill your order and deliver products you purchase. When you purchase a product from an OTC+ Merchant, you acknowledge and agree:
WE DO NOT MAKE ANY GUARANTEES, WARRANTIES OR REPRESENTATIONS REGARDING THE FOREGOING RESPONSIBILITIES OF OTC+ MERCHANTS OR THE PRODUCTS OR SERVICES OF OTC+ MERCHANTS. TO THE FULLEST EXTENT PROVIDED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY ACTIONS OR OMISSIONS OF AN OTC+ MERCHANT OR ANY PRODUCTS OR SERVICES SOLD BY SUCH OTC+ MERCHANT.
- (i) In the event you wish to return a product you purchased from an OTC+ Merchant, you should contact our customer service agents to arrange return directly to the OTC+ Merchant. OTC+ Merchant products must not be returned to us because we did not ship the product.
- (ii) OTC+ Merchants are identified as such on their product display pages. The OTC+ Marketplace may also enable an OTC+ Merchant to have an OTC+ Merchant page with additional information about the OTC+ Merchant, its products, warranties and policies.
- (iii) OTC+ Merchants are solely responsible for all content on their product display pages and are solely responsible for all product representations, warranties, descriptions, specifications, claims, pricing, disclosures, warnings, packaging, tagging, labeling and other product-related information.
- (iv) OTC+ Merchants are solely responsible for the accuracy or completeness of any information regarding themselves or their products, including prices, product images, specifications, availability and services. OTC+ Merchants may change or update information and correct errors, inaccuracies or omissions at any time without prior notice.
- (v) OTC+ Merchants are also solely responsible for fulfillment and shipment of orders for their products.
- (vi) When you purchase a product from an OTC+ Merchant you understand and agree that the product is being sold to you directly by the OTC+ Merchant and not by us and that we are not the seller of the product and we are not a party to the transaction between you and the OTC+ Merchant.
- (vii) Products sold by OTC+ Merchants are subject to certain limitations. OTC+ Merchant products are not eligible for our 110% Lowest Price Guarantee, 100% Happiness Guarantee, or Return Policy. In addition, expedited shipping and shipping to destinations outside the United States may not be available on purchases of OTC+ Merchant products. However, our promotions and special offers that are generally available with purchases on this website and our gift cards (not OTC+ Merchant promotions or gift cards) may be used on purchases of OTC+ Merchant products subject to the specific terms and details of each such promotion, special offer or gift card.
- Copyright Infringement Notification Procedure. We respect the intellectual property rights of others. If you believe your work has been copied in a way that constitutes copyright infringement, please send our Copyright Agent a notification of claimed infringement with all of the following information:
Copyright AgentBy submitting a copyright infringement notice, you acknowledge and agree that we may forward your copyright infringement notice and any related communications to any users who posted the material identified in such notice.
- (i) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
- (ii) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on our website;
- (iii) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
- (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- (v) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
- (vi) your physical or electronic signature.
IP Law Group
Brainy Toys, Inc. Fun Express LLC OTC Direct, Inc.
5455 South 90th Street
Omaha, NE 68127
phone: (402) 829-4777
fax: (402) 829-4489
Please do not send notices or inquiries unrelated to alleged copyright infringement to our designated agent.
- Counter-Notification Process. If you believe that your Content, or Content for which you have the authorization from the copyright owner or the copyright owner's agent, has been removed due to a copyright infringement notice we received in error, you may send us a counter-notification directed to the Copyright Agent listed above. Your counter-notification must be in writing and include the following information:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location where the material previously appeared before it was removed or disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- your name, address, and telephone number and a statement that you consent to the jurisdiction of the District of Nebraska, and agree to accept service of process from the person who submitted the original copyright infringement notice that resulted in your user Content being removed (or an agent of such person) in the event he or she elects to file suit.
- Miscellaneous. No amendment, modification or addition to these terms and conditions shall be binding unless expressly agreed to in writing and signed by us. These terms and conditions shall be binding upon you, your permitted successors and assigns, and shall inure to the benefit of us. Any waiver by us of any part herein shall not constitute a waiver of any other part. These terms and conditions shall be construed under and governed by the substantive laws and not the choice of law rules of the state of Nebraska. You consent to and agree that any state or federal court in Douglas County, Nebraska shall have personal and subject matter jurisdiction over you and this Agreement; that Nebraska has the most significant contacts with this Agreement, to the exclusion of any other state; and that any legal dispute brought by either you or us relating to this Agreement will be instituted in Douglas County, Nebraska. You expressly consent and agree to receive communications regarding any order or transaction from us by electronic mail and facsimile.