Last Updated: 10 September 2024

These terms of use will be effective as of December 1, 2024.

These terms of use (“Terms of Use”) apply between BERG Toys B.V. (“us”, “we” or “our”) and the user (“You” or “Your”) of the Infinity Pods (“Product”) and the accompanying Infinity Pods app (the “App”).

The Terms of Use together with our Privacy Policy govern Your use of, interactions with or other access to the App, and constitute a binding contract between You and us.

By downloading, installing or using the App, You represent and warrant that You have: (A) read and understand the provisions set forth in these Terms of Use; (B) are of the legal age required to assent to and be bound by these Terms of Use and all of our other policies, notices, terms and conditions; and (C) if applicable, You have the legal authority bind the entity which You represent to these Terms of Use and all of our other policies, notices, terms and conditions. If You agree to these Terms of Use on behalf of another person, company or other legal entity, “You” and “Your” (as used herein and in all of our other notices, terms and policies) will refer and apply to that person, company or other legal entity. This representation and warranty shall be personally enforceable against You. By using the Product and the App, You accept these Terms of Use.

We are committed to preserving Your privacy in accordance with our Privacy Policy, which contains details concerning our practices for collecting, using, maintaining, protecting, and disclosing Your information as well as the choices available to You regarding our use of Your information, including Personal Information (as defined in the Privacy Policy). Please read the Privacy Policy carefully before using, accessing, or otherwise interacting with the App.

We may modify, revise, replace or update these Terms of Use, our Privacy Policy or any of our other notices, terms and conditions in our sole discretion, at any time, and without prior notice to You. All changes to the Terms of Use are effective immediately upon posting and apply to all use of, interactions with and other access to the App. Your use of the App will be subject to the current version of the Terms of Use posted on Our website (“Site”) located at  https://www.bergtoys.com/int_en/infinity-pods-terms-of-use-us and in the App at the time of such use.

If any change to these Terms of Use, our Privacy Policy or any of our other notices, terms and conditions is material, we will provide notice as to the change by posting on the Site and in the App. We encourage You to regularly check the Site so that You understand our most current Terms of Use, Privacy Policy or any of our other notices, terms and conditions posted thereon. Please note that Your continued use of, access to or interaction with the App after any revision to these Terms of Use shall constitute Your agreement to be bound by the revised Terms of Use, our Privacy Policy or any of our other notices, terms and conditions.  

If You do not agree to these Terms of Use, the Privacy Policy or our other terms and conditions, then You should not, and have no right or authorization to, use the App.

1. ABOUT US

   1. The App is owned and operated by BERG Toys B.V., a company with limited liability established at Stevinlaan 2, (6716 WB) Ede, the Netherlands, and registered with the Dutch Chamber of Commerce under number 09094642.
   2. If You would like to make a complaint about anything regarding the App, please contact us using the following details:

BERG Toys B.V.

Stevinlaan 2

6716 WB, Ede

The Netherlands

Customer Service Contact: https://www.berg.com/int_en/contact

1. BASIC TERMS

   1. You must be six (6) years or older to use the Product and the App.
   2. If You are below eighteen (18) years of age, You must obtain the permission of Your parent(s) or legal guardian(s) before downloading, installing, accessing or using the App and ask their advice on the proper and safe use.
   3. Parents or legal guardians should supervise their children’s use of the Product and the App. 
   4. You do not need to register or create an account to access the App.
   5. You must use the Product and App in accordance with the Product manual at all times. The Product and App may not be used for any purpose other than described herein and in the Product manual. 
   6. You reserve the right to delete the App at any time. Deleting the App will result in the removal of any saved high scores. 
2. NO FEES

   1. Access to the App is currently free of charge. We reserve the right, at out sole discretion, to stop offering the App free of charge at any time, but we will inform You on our Site, in the App and in the Apple App Store or Google Play Store if we decide to make a change on the use of the App and give You a reasonable length of time to terminate Your use of the App if You wish to do so.
3. CONDUCT

   1. Subject to the following non-exhaustive list of restrictions and obligations, You hereby agree that You will not use, access or otherwise interact with the App in any way that:

      1. Is unlawful, fraudulent, defamatory, obscene, or otherwise harmful to us or any third party;
4. 1. Violates any applicable laws, rules or regulations, or infringes or violates any other person’s or entities’ proprietary or other intellectual property rights;
5. 1. Violates of any of our notices, terms and conditions, including, but not limited to, these Terms of Use and the Privacy Policy;

1. Impersonates or attempts to impersonate us, any of our personnel, licensors, sponsors, affiliates, employees, agents, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing);
2. Encourages another individual or entity to engage in an activity that would constitute a violation of these Terms of Use or any applicable law, rule or regulation.

1. Introducing any viruses, trojan horses, worms, logic bombs or other materials that are malicious or are technologically harmful;

1. Digital Millennium Copyright Act

We respect the copyrights of others. If You believe that Your work is accessible on or through the App in a way that constitutes copyright infringement in accordance with the Digital Millennium Copyright Act 17 U.S.C § 512(c)(3) (the “DMCA”), You may notify us by sending an email or a written notice to our designated agent for infringement claims, which includes the following information:

1. A physical or electronic signature of the person authorized to act on behalf of the owner of a right that is allegedly infringed;

1. A description of the copyrighted work claimed to have been infringed or, if multiple copyrighted works on our Site or available through the App are covered by a single notification, a representative list of such works;

1. An identification of the material(s) that is/are claimed to be infringing and access to which is requested to be disabled, in addition to information reasonably sufficient to permit us to locate such material, such as a specific URL;

1. Adequate information by which we can contact You (including Your name, postal address, telephone number, and, if available, email address);

1. A statement by You, expressly indicating that You have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

1. A statement by You under the penalty of perjury that the information in the notification is accurate and that you are authorized to act on behalf of the rights-holder whose right is allegedly infringed.

Our designated copyright agent to receive DMCA notices is:

BERG Toys B.V.

Agent for Claims of Infringement:

Moses & Singer LLP

405 Lexington Avenue

New York, NY 10174

(212) 554-7800

If You fail to comply with all of the requirements of § 512(c)(3) of the DMCA, Your DMCA notice may not be effective.

Please be aware that if You knowingly and materially misrepresent that material or activity on the Site or displayed anywhere else via the App is infringing Your copyright, You may be held liable for damages (including costs and attorneys’ fees) under § 512(f) of the DMCA.

1. DISCLAIMERS AND LIABILITY

   1. We cannot guarantee the availability of the App and do not warrant the accuracy, timeliness, completeness, or usefulness of any of the information available on or through the App. Any reliance You place on such information is strictly at Your own risk.
   2. YOU UNDERSTAND AND AGREE THAT THE APP IS PROVIDED TO YOU ON AN “AS IS” BASIS, AND WE MAKES NO EXPRESS OR IMPLIED WARRANTY CONCERNING THE APP, WHETHER IN WHOLE OR IN PART, AND WE EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT THERETO.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE IS NO GUARANTY THAT THE APP WILL MEET YOUR REQUIREMENTS, BE ERROR FREE, OR OPERATE WITHOUT INTERRUPTION OR THAT OUR APP OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
   3. There will be occasions when usage of the App will be interrupted for scheduled maintenance or updates, for emergency repairs, or due to failure of telecommunication links and equipment that are beyond our control.
2. VIOLATIONS OF THESE TERMS AND OUR SUSPENSION AND TERMINATION RIGHTS

   1. We have the right to investigate and determine in our sole discretion whether You have violated the provisions of these Terms of Use, our Privacy Policy or any other notices, terms and conditions posted on our Site. We may involve and cooperate with law enforcement authorities in prosecuting You if You actually violate or are suspected of having violated any of the foregoing. You hereby acknowledge and agree that we have no obligation to monitor Your use of, interactions with or other access to the App, but that we have the right to do so for the purposes of operating the App and ensuring Your compliance with these Terms of Use, the Privacy Policy, any of our other notices, terms and conditions or other applicable laws, rules, regulations or court orders.
3. 1. You hereby acknowledge and agree that we have the right to change, disable, suspend, terminate or discontinue any part of the App, in our sole discretion, at any time, and without prior notice to You, for any reason or in response to Your violation of these Terms of Use, the Privacy Policy, any of our other notices, terms and conditions or applicable laws, rules, regulations or court orders.
4. 1. You hereby further acknowledge and agree that a violation of these Terms of Use, the Privacy Policy and any of our other notices, terms and conditions will cause substantial harm to us, monetary damages for which will be difficult to ascertain and for which there will be no adequate remedy at law.  Accordingly, in response to Your violation or any suspected violation, we reserve the right to limit, suspend or terminate Your right to access the App and pursue ex-parte equitable or other legal remedies, including without limitation, injunctive relief or emergency restraining orders, against You without the obligation to post any surety or bond, to the fullest extent permitted by law.  The remedies set forth in this Section are not exclusive and shall be cumulative of any other remedies available to us at law or in equity.

1. INDEMNIFICATION

   1. You hereby agree to indemnify, defend and hold us harmless and our parents, subsidiaries, affiliates, licensors and service providers, and our and their respective partners, principals, officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns (collectively, the “Indemnified Parties”) from and against any and all claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including, but not limited to, reasonable attorneys’ fees and costs associated with pursuing any insurance coverage) (collectively, the “Claims”) arising out of or relating to: (A) Your violation of these Terms of Use, the Privacy Policy or any of our other notices, terms and conditions and the subject matter thereof, including without limitation, Your use of, interactions with, or other access to the App, whether authorized or unauthorized; and (B) Your violation of any law, rule, regulation or third party rights, including without limitation, intellectual property and other proprietary rights pertaining to or associated with Your use of the Licensed Materials, Products or App.
   2. We will notify You of any such claims or proceedings and keep You informed as to the progress of such claims or proceedings.
2. LIMITATION OF LIABILITY

   1. YOU HEREBY ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF, INTERACTION WITH OR OTHER ACCESS TO THE APP REMAINS WITH YOU. IN NO EVENT WILL WE, OR OUR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, RELIANCE, EXEMPLARY OR INDIRECT DAMAGES OR ANY LOST PROFITS ARISING OUT OF OR RELATING TO THE APP, THESE TERMS OF USE, OR FROM THE USE OF OR INABILITY TO USE THE APP OR SITE CONTENT, HOWEVER CAUSED OR ALLEGED, REGARDLESS OF WHETHER WE OR THE INDEMNIFIED PARTIES HAVE BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH ANY TRADING LOSSES, FOREGONE GAINS OR FAILURE TO SUCCESSFULLY IMPLEMENT AN INVESTMENT STRATEGY.
3. 1. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE AND THE INDEMNIFIED PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND CAUSED BY ANY CYBER-ATTACK, INCLUDING WITHOUT LIMITATION, ANY DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF, INTERACTION WITH OR OTHER ACCESS TO THE APP OR ANY CONTENT CONTAINED THEREON OR THROUGH ANY THIRD PARTY SERVICES.
4. 1. EXCEPT TO THE EXTENT DAMAGES ARISE FROM A PARTY’S FRAUD OR WILLFUL MISCONDUCT, THE PARTIES FURTHER AGREE THAT, IN NO EVENT WILL WE OR THE INDEMNIFIED PARTIES BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATING TO THE APP, THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE APP OR SITE CONTENT, HOWEVER CAUSED OR ALLEGED, IN EXCESS OF THE SALE PRICE PAID FOR THE PRODUCT.
5. GENERAL

   1. No waiver of a right under these Terms of Use will be effective unless it is in writing. No single waiver of a right shall be deemed a further or continuing waiver of such right or any other provision. In addition, a delay or failure to assert any right under these Terms of Use, or to partially assert that right, or a single exercise of that right, shall not in itself constitute a waiver of that right as provided in these Terms of Use.
   2. If any part of these Terms of Use is held invalid or unenforceable for any reason by any court of competent jurisdiction, it shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties. The invalidity or unenforceability of any part or provision of these Terms of Use will not affect the validity of the rest of the Terms of Use, which shall remain in full force and effect.
   3. These Terms of Use are effective unless and until terminated either by You or us. You may terminate these Terms of Use at any time when You cease using the App. The obligations and liability of the parties incurred prior to termination shall survive the termination of these Terms of Use for all purposes.
   4. We may assign our rights and obligations under these Terms of Use, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law, without Your prior consent and without notifying You of any assignment.
   5. These Terms of Use and the Privacy Policy constitute the entire agreement between the parties hereto. Unless otherwise specified herein, the Terms, our Privacy Policy or any of our other notices, terms and conditions govern Your use of, interactions with or other access to the App and supersede all prior or contemporaneous communications and agreements (whether oral, written, or electronic) between You and us with respect to Your use of, interactions with or access to the App. Any ambiguities in the interpretation of these Terms of Use shall not be construed against the drafting party.
   6. You agree that these Terms of Use, our Privacy Policy or any of our other notices, terms and conditions shall, for all purposes, be governed by and construed in accordance with the laws of the State of New York other than those laws that would defer to the substantive laws of another jurisdiction. Any action based on, relating to, arising out of, or alleging a breach of these Terms of Use, our Privacy Policy or any of our other notices, terms and conditions must be brought in a state or federal court in New York, New York and the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction and venue of such courts over such claims. YOU HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHTS TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS, OR THE USE OR INABILITY TO USE THE APP.
   7. The headings used in these Terms of Use are included for convenience only and will not limit or otherwise affect these Terms of Use.