Terms and Conditions

Terms of Use

Effective Date: 3/22/2025

Published by: Jesse Traub, CEO

IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE ("TERMS"), INCLUDING THE MANDATORY ARBITRATION PROVISION, WHICH REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS-WIDE OR CONSOLIDATED BASIS.

These terms constitute a binding agreement between you and PencilPals, LLC ("PencilPals," "we," or "us") governing your use of any website, mobile or other app, product, feature, or other service offered by us that posts a link to or otherwise provides these Terms (collectively, the "PencilPals Properties").

Your use of the PencilPals Properties is also governed by our Privacy Policy. IF YOU DO NOT AGREE TO THESE TERMS, ANY APPLICABLE SUPPLEMENTAL TERMS, OR OUR PRIVACY POLICY, DO NOT ACCESS OR USE THE PENCILPALS PROPERTIES.

Changes to this Agreement

To the maximum extent allowed by applicable law, we reserve the right to change these Terms and create New Supplemental Terms at any time without prior notice. When we make changes, the new Terms will be made available at the PencilPals Properties, and any new Supplemental Terms will be made available from within, or through, the affected services on the applicable PencilPals Properties . We may also provide notice to you in other ways, such as through contact information you have provided. Your continued use of any of the PencilPals Properties after the effective date of the revised Terms and/or Supplemental Terms as applicable (or engaging in such other conduct as we may reasonably specify) will constitute your consent to those changes to the fullest extent allowed by applicable law.

Changes to Services

PencilPals may modify, suspend, or discontinue any aspect of the products or services we offer through the PencilPals Properties (collectively "Services"), at any time for any reason, with or without notice to you, including the availability of any PencilPals Property, or any feature or Content (defined below) of a PencilPals Property.

PencilPals Content

Except with respect to User Content (defined below), PencilPals, its licensors, or suppliers own all rights, title, and interest in and to the intellectual property contained within the PencilPals Properties (collectively, "PencilPals Content"). The PencilPals Content is protected by United States and international laws. The PencilPals Content and the User Content are collectively referred to in these Terms as "Content."

You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works from, distribute, perform, display, incorporate into another website, app, or other service, or in any way exploit, any of the PencilPals Content, in whole or in part, except as set forth in these Terms, without the specific permission of PencilPals.

Subject to your compliance with these Terms and any applicable Supplemental Terms, PencilPals grants to you a limited, revocable, non-exclusive, non-transferable license to engage in the following activities for non-commercial purposes only:

1. To browse, access, and view any of the PencilPals Properties and the Content therein that is available to the public without registration; and, if you have registered or subscribed as required by the applicable Service, to browse, access, and view Content available to such registered or subscribed viewers;
2. To download, install, and use a copy of any downloadable application or other Content comprising or available through PencilPals Properties (e.g., coloring pages or a PencilPals mobile app governed by these Terms) on any computing device that you own or control solely for your personal or family use;
3. To link to the PencilPals Properties, provided, however, that your website or any third-party websites that link to the PencilPals Properties: (a) must not frame or create a browser or border environment around any of PencilPals Content or otherwise mirror any part of the PencilPals Properties; (b) must not imply that PencilPals is endorsing or sponsoring it or its products or services, unless PencilPals has given it prior written consent; (c) must not present false information about, or disparage, tarnish, or otherwise, in PencilPals’ sole opinion, harm PencilPals or its Services; (d) must not use any PencilPals trademarks without the prior written permission from PencilPals; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in PencilPals’ sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. By linking to a PencilPals Property, you agree that you do and will continue to comply with the above linking requirements. Notwithstanding anything to the contrary contained in these Terms, PencilPals reserves the right to prohibit linking to the PencilPals Properties for any reason in our sole and absolute discretion even if the linking complies with the requirements described above.

The foregoing license does not include any right to modify, publish, participate in the transfer or sale of, reproduction, or creation of derivative works from the PencilPals Content or the PencilPals Properties, except as and only to the extent expressly stated above.

User Content

You and other users may have the ability to upload to, transmit through, or otherwise make available (collectively, "Upload") through the PencilPals Properties personalized messages, audio, video, photographs, files, data, reviews, discussions in community forums, or other materials (collectively, "User Content"). You are solely and entirely responsible for User Content that you Upload using the PencilPals Properties. You acknowledge that other users of the PencilPals Properties, and not PencilPals, are similarly responsible for all User Content they Upload using the PencilPals Properties. You agree that you have no right, title, or interest in or to any Content that you have not Uploaded that appears on or through the PencilPals Properties.

You acknowledge that PencilPals has no obligation to pre-screen, monitor, edit, remove, or investigate User Content, but that it reserves the right to do so.

Subject to any applicable account settings that we may choose to make available to you, and which you may then choose to select, you grant to PencilPals a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right (including any moral rights) and license to use, distribute, reproduce, modify, adapt, translate, create derivative works of, publicly perform, and publicly display your User Content, in whole or in part, together (at PencilPals’ option) with the names, voices, likenesses, or other protectable personal attributes of any persons identifiable therein, in any form, media, or technology now known or later developed, for the purposes of operating and providing the PencilPals Properties and their services to you and to other users. Notwithstanding the foregoing, with respect to User Content that is provided to PencilPals solely for the purpose of incorporating such User Content into a product or service ordered by you, you grant such right to PencilPals for the sole purpose of making and delivering products and services ordered by you.

Except as otherwise described in our Privacy Policy, any User Content will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure of User Content. You acknowledge and agree that your relationship with PencilPals is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any User Content does not impose any confidentiality obligations on PencilPals. For example, PencilPals may aggregate, de-identify, pseudonymize, and/or anonymize any information, including your User Content, such that this information is no longer linked to your personal information. We may share this non-personal information with third parties for any purpose in our discretion and as permitted by law, including for advertising, research and marketing purposes.

It is our policy not to accept or consider content, information, ideas, suggestions or other materials other than those we have specifically requested, to which certain specific terms, conditions and requirements may apply. This is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing independently. Accordingly, PencilPals does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted and you agree that any such ideas transmitted to PencilPals are included in the above license you grant to PencilPals for any User Content.

You agree and understand that we are not obligated to post, keep or use your User Content.

You represent and warrant that you are the owner of all rights, title, and interest in and to the User Content you Upload (or such User Content is in the public domain), or otherwise have all rights necessary to grant the license provided for in these Terms, including without limitation that any other holder of any worldwide intellectual property right, including moral rights (to the extent allowed by applicable law), in the User Content you Upload, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You further warrant that the User Content you Upload is accurate, does not violate these Terms, and will not cause injury to any person or entity.

If you send an item (such as a product, activity, or gift) to another individual – whether such item is physical or digital – you represent and warrant that you have the consent of the recipient to send that item. You acknowledge and agree that you, not PencilPals, are the sender of such an item, and that we act merely as a delivery agent.

Intellectual Property Claims

In accordance with the Digital Millennium Copyright Act of 1998 (the "DMCA"), PencilPals has a designated agent for receiving notices of copyright infringement, and we follow the notice and take down procedures of the DMCA. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the following information required by the Online Copyright Infringement Liability Limitation Act of the DMCA, 17 U.S.C. 512:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• An identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
• An identification of the material that you claim is infringing or to be the subject of infringing activity, together with information reasonably sufficient for us to locate the material on the PencilPals Properties;
• Information reasonably sufficient to permit us to contact the complaining party;
• A written 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; and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Please send this information to our Intellectual Property Attorney:

Gina T. Constant

Constant Law, LLC

PO Box 91267

Albuquerque, NM 87199

7400 Hancock Ct. NE - Suite C

Albuquerque, NM 87109

If you believe that any content on the PencilPals Properties violates your exclusive rights other than copyrights, please provide us at least the following information: (a) your physical or electronic signature; (b) identification of the material that you claim is infringing your exclusive rights and information reasonably sufficient to permit us to locate the material; (c) an explanation of the exclusive rights that you own/have and why the you believe the content infringes those rights, sufficient for us to evaluate the complaint; and (d) accurate contact information for you. Please send your complaint to GTC@ConstantLawLLC.com.

It is often difficult to determine if your intellectual property rights have been violated or if the DMCA requirements have been met. We may request additional information before we remove any infringing material. If a dispute develops as to the correct owner of the rights in question, we reserve the right to remove your content along with that of the alleged infringer pending resolution of the matter.

User Conduct

As a condition of your use of the PencilPals Properties, you agree not to use the PencilPals Properties for any purpose that is prohibited by these Terms, by applicable Supplemental Terms, by applicable law or in any other manner that we deem objectionable (in our sole discretion). You will not, and will not permit or assist any third party to, take any action or Upload any User Content on or through the PencilPals Properties that:

• Infringes on any copyright, trademark, patent, trade secret, right of publicity, right of privacy, or any other right of another person or entity;
• Is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane, or vulgar;
• Promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group;
• Constitutes unauthorized or unsolicited advertising, junk mail, bulk mail, chain letters, or surveys;
• Discloses another person's address, phone number, e-mail address, credit card number, or any information that may be used to track, contact, or impersonate that individual or that is extremely personal in nature;
• Discloses "Sensitive Information" such as any other information relating to: (a) government-issued identifications, including, but not limited to, Social Security Numbers (in whole or in part), Individual Taxpayer Identification Numbers, Driver’s License, etc.; (b) financial account numbers; (c)health information, such as biometric identifiers; or (d) other highly classified information which would be considered sensitive;
• Involves commercial activities and/or sales, such as contests, sweepstakes, or barter; communicating or facilitating any commercial advertisement or solicitation; marketing any goods or services; reselling, renting, leasing, or providing for payment the Services to any person;
• Impersonates any person or entity, including any employee or representative of PencilPals;
• Engages in or attempts to engage in any potentially harmful acts that are directed against the PencilPals Properties, including but not limited to violating or attempting to violate any security features of the PencilPals Properties; uses manual or automated software or other means to scrape, crawl, spider, or similarly access any portion of the PencilPals Properties (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from our websites for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); introduces or sends viruses, worms, spyware, malware, or any other kind of harmful code into or through the PencilPals Properties; interferes or attempts to interfere with the proper functioning of or use by others of the PencilPals Properties, including by means of overloading, flooding, spamming, mail bombing, or crashing the PencilPals Properties;
• Engages in or attempts to engage in any of the following: disabling, bypassing, modifying, defeating, violating, removing, impairing, circumventing, or otherwise interfering with digital rights-management technology or other features or technology that limits or prevents use of the PencilPals Properties or the Content therein; or
• Automates the process of sending or viewing Content.

You agree to not engage in the use, copying, or distribution of any of the Content other than as expressly permitted in these Terms, including any use, copying, or distribution of User Content of third parties obtained through the PencilPals Properties for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.

You agree that digital rights-management technology is an integral and inseparable part of any PencilPals Property that employs it. Tampering with or circumventing such digital rights-management technology or otherwise accessing or using the PencilPals Properties or Content in violation of these Terms and any applicable Supplemental Terms may constitute copyright infringement.

YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH ANY OTHER USERS AND THIRD PARTIES WITH WHOM YOU INTERACT. Notwithstanding the foregoing, we reserve the right (but have no obligation) to intercede in any disputes that arise out of those interactions. You agree that PencilPals is not and will not be responsible for any liability incurred as the result of such interactions. We do not approve, endorse, or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.

Investigations

We reserve the right to investigate User Content, as well as violations of these Terms and any applicable Supplemental Terms, including by requesting evidence of your rights in and to the User Content. PencilPals reserves the right to refuse and/or remove any User Content, and to suspend the shipping of any order or service relating to User Content, for any reason it deems, in its sole discretion, to be appropriate. By using the PencilPals Properties, you irrevocably consent to such investigations and disclosures.

Security of Your Account

You are responsible for the accuracy of the information included in your account, including updating your information as necessary, and maintaining the confidentiality of your password. To the fullest extent allowed by law, all activity conducted in connection with your account will be your responsibility, as you are deemed to be in sole possession and control of the confidential password necessary to access your account. You must immediately notify PencilPals of any unauthorized access or tampering of your account, or suspected breach of security by contacting Consumer Affairs at us at the address below. The information you provide is used to respond directly to your questions or comments. We may also file your comments and share them with our consumer care team to improve our service in the future.

PencilPals, LLC

Attn: Consumer Affairs

210 Graceland Dr. NE

Albuquerque, NM 87108

Equipment Requirements and Fees

You must provide all equipment and software necessary to connect to the PencilPals Properties, including, for any app we may offer ("App"), a mobile device or tablet that is suitable to connect with and use such App. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the PencilPals Properties.

Purchase Terms

Any purchase you make online through the PencilPals Properties is subject to the purchase terms or other applicable offer terms posted on the PencilPals Properties, including, without limitation, our Purchase Terms. PencilPals’ Purchase Terms constitute Supplemental Terms for purposes of these Terms.

Sweepstakes, Contests, and Promotions

Any sweepstakes, contests or other promotions (any, a "Promotion") that may be offered via the PencilPals Properties may be governed by a separate set of rules that may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the Promotion and any User Content you submit, and disclosures about how your personal information may be used. It is your responsibility to read these rules to determine whether or not you want to and are eligible to participate, register and/or enter, and to determine the applicable terms and conditions of the Promotion. By participating in a Promotion, you will be subject to those official rules, and you agree to comply with and abide by such rules and the decisions of the identified sponsor(s).

Third-Party Links, Applications, and Content

There may be links from the PencilPals Properties, or in communications you receive from the PencilPals Properties, to third-party sites or properties. The PencilPals Properties may also include third-party content that we do not control, maintain, or endorse. Accessing those third-party sites requires you to leave the PencilPals Properties. In addition, to access certain PencilPals Properties, you may be required to use the sites and properties of a third party. We do not control those third-party sites or any of the content contained therein and you expressly acknowledge and agree that we are in no way responsible or liable for any of those third-party sites or properties, including, without limitation, their content, policies, failures, promotions, products, services, actions and/or any damages, losses, failures or problems caused by, related to or arising from those third parties or their sites. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH OTHERS FOUND ON OR THROUGH A PENCILPALS PROPERTY INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES, AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. PENCILPALS ENCOURAGES YOU TO REVIEW ALL POLICIES, RULES, TERMS, AND REGULATIONS, INCLUDING THE PRIVACY POLICIES AND TERMS OF USE OF EACH AND EVERY THIRD-PARTY SITE THAT YOU VISIT.

International Users

Some of the PencilPals Properties may be accessible from countries around the world and may contain references to Services that are not available in your country. These references do not imply that we intend to announce such Services in your country. The PencilPals Properties are controlled and offered by us from its facilities in the United States. PencilPals makes no representations that the PencilPals Properties or our Services are appropriate or available for use in other countries. Those who access the PencilPals Properties or use our Services from other countries do so at their own volition and are responsible for compliance with local law.

Indemnification

To the fullest extent permitted by law, you agree to indemnify, defend, and hold PencilPals, and their officers, employees, agents, partners and licensors (collectively, the "PencilPals Parties") harmless from any losses, costs, liabilities and expenses (including reasonable attorneys' fees) relating to or arising out of: (a) your User Content; (b) your use of, or inability to use, the PencilPals Properties or our Services; (c) your violation of these Terms or any applicable Supplemental Terms; (d) your violation of any rights of another party, including other users; or (e) your violation of any applicable laws, rules or regulations.

We reserve the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses.

This provision does not require you to indemnify any of the PencilPals Parties for any unconscionable commercial practice by such party or for such party's fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided under these Terms. You agree that the provisions in this section will survive any termination of your account, these Terms or any applicable Supplemental Terms, or your access to the PencilPals Properties.

Suspension and Termination

We reserve the right to suspend or terminate your access to all or some of our PencilPals Properties (including refusing to allow you to purchase products or services), with or without notice, and with or without refund, if we, in our sole discretion, determine that you are in breach of these Terms or any applicable Supplemental Terms or have engaged in conduct that we, in our sole discretion, deem inappropriate.

In the event of suspension or termination by PencilPals, we may delete or change your password(s) associated with any account you may have for PencilPals Properties; delete or change your account for such PencilPals Properties, including deleting your User Content, and/or transaction history; and bar your further use of such PencilPals Properties, as well as that of anyone sharing your email address, payment information, and/or physical address. You understand that such actions may be taken without any liability whatsoever to you for any suspension or termination, including for deletion of User Content.

All provisions of these Terms and any applicable Supplemental Terms which by their nature should survive termination, will survive termination of your access to the PencilPals Properties, including without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.

If your access to PencilPals Properties is terminated under these Terms, then you agree that you will not attempt to re-register with or access the PencilPals Properties through use of a different username or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those of our PencilPals Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, we reserve the right, in our sole discretion, to immediately take any or all of the actions set forth in these Terms without any notice or warning to you.

Disclaimer of Warranties and Conditions

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE PENCILPALS PROPERTIES AND OUR SERVICES IS AT YOUR SOLE RISK, AND THE PENCILPALS PROPERTIES AND OUR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. WE RESERVE THE RIGHT TO AMEND ERRORS AND UPDATE PRODUCT AND SERVICE INFORMATION AT ANY TIME WITHOUT PRIOR NOTICE. THE PENCILPALS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE PENCILPALS PROPERTIES OR OUR SERVICES.

THE PENCILPALS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: OUR SERVICES WILL MEET YOUR REQUIREMENTS; YOUR USE OF OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT THE PENCILPALS PROPERTIES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE CONTENT/MATERIALS OF THE PENCILPALS PROPERTIES ARE CORRECT, ACCURATE, OR RELIABLE.

ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH OUR SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PENCILPALS PROPERTIES OR OUR SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

OUR SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. THE PENCILPALS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

Limitations on Liability

Disclaimer of Certain Damages.

YOU AGREE THAT IN NO EVENT WILL THE PENCILPALS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SERVICES, OR ANY DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, OR PROCUREMENT OF SUBSTITUTE SERVICES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PENCILPALS PROPERTIES, OR OUR SERVICES, OR FROM ANY COMMUNICATIONS WITH OTHER USERS THEREOF, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE PENCILPALS PROPERTIES OR OUR SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY SERVICES PURCHASED OR OBTAINED THROUGH THE PENCILPALS PROPERTIES; (3) CONDUCT OF ANY THIRD PARTY ON PENCILPALS PROPERTIES; OR (4) ANY OTHER MATTER RELATED TO THE PENCILPALS PROPERTIES OR OUR SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF A PENCILPALS PARTY FOR ANY INJURY CAUSED BY A PENCILPALS PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.

Cap on Liability.

UNDER NO CIRCUMSTANCES WILL THE PENCILPALS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO PENCILPALS BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY OR (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY WILL NOT APPLY TO LIABILITY OF A PENCILPALS PARTY FOR ANY INJURY CAUSED BY A PENCILPALS PARTY'S FRAUD OR FRAUDULENT MISREPRESENTATION.

User Content.

EXCEPT FOR PENCILPALS’ OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE PENCILPALS PRIVACY POLICY, PENCILPALS ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY CONTENT, USER CONTENT, USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.

Basis of the Bargain.

THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PENCILPALS AND YOU.

BINDING ARBITRATION

PLEASE READ THIS SECTION ("Arbitration Agreement") CAREFULLY. THIS ARBITRATION AGREEMENT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR FINAL BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR COLLECTIVE ACTION.

1. Applicability of Arbitration Agreement. YOU AND PENCILPALS AGREE THAT ANY DISPUTE (AS DEFINED BELOW) OR CLAIM RELATING IN ANY WAY TO YOUR ACCESS OR USE OF THE PENCILPALS PROPERTIES, TO THESE TERMS OR ANY SUPPLEMENTAL TERMS (INCLUDING THEIR INTERPRETATION, VALIDITY, TERMINATION OR BREACH), OR TO ANY SERVICES, OR TO ANY ASPECT OF YOUR RELATIONSHIP WITH PENCILPALS, WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that (1) you or PencilPals may assert claims in small claims court if your or our claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or PencilPals may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the effective date of these Terms or any prior version of this agreement. BY AGREEING TO ARBITRATION, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST PENCILPALS ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PENCILPALS IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

This Arbitration Agreement Applies to any "Dispute." For the purposes of this Arbitration Agreement, "Dispute" shall include, but is not limited to, any claim or controversy between you and PencilPals that is related in any way to these Terms, including, but not limited to, your use of the site, sales, returns, refunds, cancellations, defects, policies, privacy, advertising, and/or communications between you and PencilPals, whether occurring on the Site or in-store, even if the Dispute arises after the termination of your relationship with PencilPals. "Dispute" also includes, without limitation, claims that (a) you bring against our employees, agents, affiliates, or other representatives; (b) PencilPals brings against you; (c) in any way relate to or arise out of any aspect of the relationship between you and PencilPals, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) arose before you entered into these Terms or out of a prior agreement with PencilPals (including, without limitation, claims relating to advertising); (e) are subject to ongoing litigation where you are not a party or a class member; and/or (f) arise after the termination of these Terms. "Dispute," however, does not include disagreements or claims concerning patents, copyrights, trademarks, trade secrets, claims of piracy, or unauthorized use of intellectual property, which shall not be subject to arbitration or the notice and informal process described below. The arbitrator shall decide all issues except (1) those that are specifically addressed herein, (2) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement, and (3) any issues arising from or relating to the arbitrability of any Dispute, all of which are for a court of competent jurisdiction to decide. These Terms and this Arbitration Agreement do not prevent you from bringing your Dispute to the attention of any federal, state, or local government agency.

DUE PROCESS CLAUSE: 

PencilPals reserves the right to seek binding arbitration based on all state and federal Laws which shall provide for PROCEDURES FOR FINAL BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR COLLECTIVE ACTION.