Terms of Use
Last Updated: January 11, 2018
PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS TO AND USE OF THE SERVICE (DEFINED BELOW).
Introduction
Welcome! These Terms of Use (“Terms”) govern your access to and use of the websites (including both mobile and online versions), online and mobile services (e.g., apps), and software made available by DHX Worldwide Limited dba WildBrain (“WildBrain”, “we” “our” or “us”), including interactive features, widgets, plug-ins, applications, content, downloads and/or other services that we own and control and that post a link to these Terms (collectively, the “Service”), regardless of how you access or use the Service, whether via computer, mobile device or otherwise. The term “you” or “your” refers to the person or entity accessing or using the Service. By using the Service, you acknowledge and accept the Service’s Privacy & Cookies Policy and consent to the collection, disclosure, storage and use of your data in accordance with the Privacy & Cookies Policy.
The target audience for the Service, and its participants, is parents, parents-to-be, teenagers over the age of thirteen (13) and other adult members of families. The target audience for some of our Services may be parents of preschool age children (except for any specific kids section of a Service, which is meant for preschool age children and their parents to use together). The material appearing on twirlywoos.com is for information purposes only and is made available by WildBrain to parents, guardians, and child care providers. If you are under the applicable age of majority in your jurisdiction of residence, by using the Service, you acknowledge that your parents/guardians have consented to your use and to these Terms on your behalf, and you acknowledge and agree that your use of the Service is at their discretion. Until you are the age of majority in your jurisdiction of residence, your parents/guardians may ask us to modify, deny access to, or terminate your account and we may do so at their request at any time, for any reason, without notice or liability.
If You Want to Use the Service, then carefully read these entire Terms (including all links to details), as they constitute a written agreement between you and us and they affect your legal rights and obligations. Each time you access and/or use the Service (other than to simply read these Terms), you agree to be bound by and comply with these Terms and any Additional Terms (defined below) then posted. Therefore, do not use the Service if you do not agree. If you are under the age of majority in your province, state or jurisdiction of residence, you may use the Service only with involvement of a parent or guardian who agrees to these Terms and to be responsible for your use.
The business realities associated with operating the Service are such that, without the limitations that are set forth in these Terms, such as your grants and waivers of rights, the limitations on our liability, your indemnity of us, and the arbitration of certain disputes – we would not make the Service available to you.
By installing, downloading, accessing, or otherwise using the Service, you agree to be bound by these Terms. In some instances, both these Terms and separate guidelines, rules, or terms of use or sale setting forth additional or different terms and/or conditions will apply to your use of the Service or to a service or product offered via the Service (in each such instance, and collectively (“Additional Terms”). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise. Additionally, certain features and services made available through the Service from time to time may be governed by different terms of use. For example, a different terms of use and privacy policy apply to a Twirlywoos online store, which is operated by independent third party service providers.
Terms of Use Table of Contents and Summary
It is important that you read and understand these entire Terms before using the Service. To ease review, each section below includes a brief introductory summary and a link to the full explanation. Please note that the complete provisions, and not the headings or summaries shall govern. You can click on the headings and “More” buttons to be taken to the full explanation. Any capitalized terms have the meanings given to them where defined in the Terms.
1. Service Content, Ownership, Limited License and Rights of Others
We only grant you a limited revocable license to use the Service for your own non-commercial use subject to rules and limitations. More
2. Service and Content Use Restrictions
Your use of our Service is subject to various restrictions designed to protect the Service and our users. We may change or discontinue our Service in whole or in part. More
3. Opening and Terminating Accounts
You may open, revise and close your accounts. More
4. Content You Submit and Community Usage Rules
You grant us a broad license, which we may sublicense, to the content you submit which you represent you have the right to allow us to use. You, however, retain ownership of and responsibility for, your content. Use of our Service is subject to community usage rules and we have the right to manage our Service to keep its content appropriate. More
5. Procedure For Alleging Copyright Infringement
Users may not post content they do not own or control, and may be suspended or terminated if they do so. Copyright owners may give us notice of infringement by following specific instructions specifically addressed in this Section. More
6. Procedure For Alleging Infringement of Other Intellectual Property
You can also give notice of trademark and other infringements that you think occur on the Service. More
You agree we may provide you notices, including of new terms and conditions, by posting notice on the home page of the Service, changing the date at the beginning of these Terms or by other reasonable means that we may elect, such as to the email address you provided. More
8. Links by You to the Service
You may link to our Service, subject to some basic rules. More
9. Linked-To Websites; Advertisements; Dealings with Third Parties
We are not responsible for third parties or their content, advertisement(s), apps, sites, products and/or services. We may make advertisements and third-party content or services available to you on or via our Service, which we do not control. Use caution when dealing with third parties. More
10. Wireless and Location-Based Features
Wireless carrier charges may apply to use of the Service via wireless networks or Devices. More
The procedure for dealing with disputes is set forth here. More
12. Disclaimer of Representations, Warranties and Conditions
We disclaim warranties to the extent permitted by applicable law, and provide the Service “As Is”. More
13. Limitations of our Liability
Details with respect to our liability to you are set forth here. More
14. Waiver of Injunctive or Other Equitable Relief
You waive equitable or injunctive relief. More
These Terms and Additional Terms posted on the Service at each time of use apply to that use, and the Terms may be prospectively updated as our Service evolves. Posting of new Terms on the Service is notice to you thereof. More
You agree to various other terms and conditions, which you should read here, including regarding (a) our control and discretion; (b) your indemnity of us; (c) accessing the Service from outside of the United States, Canada and/or EU; (d) enforcement and interpretation of these Terms; (e) communications with us; (f) investigations, cooperation with law enforcement, termination and survival; (g) limit on assignment and delegation of rights and obligations; (h) how waivers may be made; (i) some special notices for residents of California; and (j) your responsibility for your connectivity and access. More
17. Terms Applicable For Apple iOS and Microsoft Windows
There are some other things you should know if you are accessing or using the Service through an Apple or Windows Phone Device. More
Full Details of the Terms of Use
1. Service Content, Ownership, Limited License and Rights of Others
a. Content. The Service contains a variety of: (i) materials and other items relating to WildBrain, and its products and services, and similar items from our licensors and other third parties, including all layout, information, articles, posts, text, data, files, images, scripts, designs, graphics, button icons, instructions, illustrations, photographs, audio clips, music, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material (including source and object code); (ii) trademarks, trade dress, logos, trade names, service marks, and/or trade identities of various parties, including those of WildBrain (collectively, “Trademarks”); and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”).
b. Ownership. The Service (including past, present, and future versions) and the Content are owned or controlled by WildBrain, our licensors or certain other third parties. All right, title, and interest in and to the Service (or any part thereof) and the Content (or any part thereof) , including any and all updates, modifications, adaptations, translations, customizations or derivative works of any of the foregoing, is the property of WildBrain or our licensors or certain other third parties, and is protected by domestic and international copyright, trademark, trade dress, patent, or other intellectual property and unfair competition rights and laws to the fullest extent possible. WildBrain owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content and the Service.
c. Limited License. Subject to your strict compliance with these Terms and any Additional Terms, WildBrain grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to: (i) download (temporary storage only), display, view, use, play, and/or print one copy of the Content (excluding source and object code in raw form or otherwise, other than as made available to access and use to enable display and functionality) on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”) for your personal, non-commercial use only, and (ii) to use certain Content that we may from time to time make available on the Service explicitly for you for use as part of your User-Generated Content (defined below) (“ WildBrain Licensed Elements”), but only for such purposes as may be explicitly stated at the time that the WildBrain Licensed Elements are made available on the Service; but we and our licensors and certain other third parties, as the case may be, retain ownership of such WildBrain Licensed Elements. The foregoing limited license: (i) does not give you any ownership of, or any other intellectual property interest in, the Service (or any part thereof) or the Content (or any part thereof); and (ii) may be immediately suspended or terminated for any reason, in WildBrain’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content and/or WildBrain Licensed Elements, subject to certain Additional Terms.
d. Rights of Others. When using the Service, you must respect the intellectual property and other rights of WildBrain and others. Your unauthorized use of Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see Section 5 below.
2. Service and Content Use Restrictions
a. Service Use Restrictions. You agree that you will not: (i) use the Service for any political or commercial purpose (including, without limitation, for purposes of advertising, soliciting funds, collecting product prices, and selling products); (ii) use any meta tags or any other “hidden text” utilizing any Trademarks; (iii) engage in any activities through or in connection with the Service that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, bullying, harassing, or abusive, or that violate any right of any third party, or are otherwise objectionable to WildBrain; (iv) reverse engineer, decompile, disassemble, reverse assemble, or modify any Service source or object code or any software or other products, services, or processes accessible through any portion of the Service; (v) engage in any activity that interferes with a user’s access to the Service or the proper operation of the Service, or otherwise causes harm to the Service, WildBrain, or other users of the Service; (vi) interfere with or circumvent any security feature of the Service or any feature that restricts or enforces limitations on use of or access to the Service, the Content, or the User-Generated Content (defined below); (vii) harvest or otherwise collect or store any information (including personally identifiable information about other users of the Service, including email addresses, without the express consent of such users); (viii) attempt to gain unauthorized access to the Service, other computer systems or networks connected to the Service, through password mining or any other means; or (ix) otherwise violate these Terms or any Additional Terms.
b. Content Use Restrictions. You also agree that, in using the Service: (i) you will not monitor, gather, copy, or distribute the Content (except as may be a result of standard search engine activity or use of a standard browser) on the Service by using any robot, rover, “bot”, spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; (ii) you will not frame or utilize framing techniques to enclose any such Content (including any images, text, or page layout); (iii) you will keep intact all Trademark, copyright, and other intellectual property notices contained in such Content; (iv) you will not use such Content in a manner that suggests an unauthorized association with any of our or our licensors’ products, services, or brands; (v) you will not make any modifications to such Content (other than to the extent of your permitted use of the WildBrain Media Licensed Elements, if applicable); (vi) you will not copy, modify, reproduce, archive, sell, lease, rent, exchange, create derivative works, translations or adaptations from, publish by hard copy or electronic means, publicly perform, display, disseminate, distribute, broadcast, retransmit, circulate or transfer to any third party or on any third-party application or website, or otherwise use or exploit such Content in any way for any purpose except as specifically permitted by these Terms or any Additional Terms or with the prior written consent of an officer of WildBrain or, in the case of Content from a licensor, the owner of the Content; (vii) you will not alter transmission data without WildBrain’s consent; and (viii) you will not insert any code or product to manipulate such Content in any way that adversely affects any user experience.
c. Availability of Service and Content. WildBrain may immediately suspend or terminate the availability of the Service and Content (and any elements and features of them), in whole or in part, for any reason, in WildBrain’s sole discretion, and without advance notice or liability. We do not guarantee that our Service, or any Content on it, will always be available or be uninterrupted. Access to our Service is permitted on a temporary basis. We will not be liable to you if for any reason our Service and/or Content is unavailable at any time or for any period.
d. Reservation of All Rights Not Granted as to Content and Service. These Terms and any Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by WIldBrain and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
3. Opening and Terminating Accounts
In order to access or use some (or potentially all) of the features on the Service, you may be required to first register through our registration process that we make available through the Service. The Service’s practices governing any resulting collection, use, disclosure and management of your personal information are disclosed in our Privacy & Cookies Policy.
If you register for any feature that requires a password and/or username, then you will select your own password at the time of registration (or we may send you an e-mail notification with a randomly generated initial password) and you agree that: (i) You will not use a username (or e-mail address) that is already being used by someone else, may impersonate another person, belongs to another person, violates the intellectual property or other right of any person or entity, or is offensive. We may reject the use of any password, username, or e-mail address for any other reason in our sole discretion; (ii) You will provide true, accurate, current, and complete registration information about yourself in connection with the registration process and, as permitted, to maintain and update it continuously and promptly to keep it accurate, current, and complete; (iii) You are solely responsible for all activities that occur under your account, password, and username – whether or not you authorized the activity; (iv) You are solely responsible for maintaining the confidentiality of your password and for restricting access to your Device so that others may not access any password protected portion of the Service using your name, username, or password; (v) You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and (vi) You will not sell, transfer, or assign your account or any account rights.
We will not be liable for any loss or damage (of any kind and under any legal theory) to you or any third party arising from your inability or failure for any reason to comply with any of the foregoing obligations.
If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates these Terms, any Additional Terms, or any applicable law, then we may suspend or terminate your account. We also reserve the more general and broad right to terminate your account or suspend or otherwise deny you access to it or its benefits – all in our sole discretion, for any reason, and without advance notice or liability.
4. Content You Submit and Community Usage Rules
a. User-Generated Content.
(i) General. WildBrain may now or in the future offer users of the Service the opportunity to create, build, post, upload, display, publish, distribute, transmit, broadcast, or otherwise make available on or submit through the Service (collectively, “submit”) messages, avatars, text, illustrations, files, images, graphics, photos, comments, responses, sounds, music, videos, information, content, ratings, reviews, data, questions, suggestions, personally identifiable information, or other information or materials and the ideas contained therein (collectively, but excluding WildBrain Licensed Elements included therein, “User-Generated Content”). WildBrain may allow you to do this through forums, blogs, message boards, contact us tools, email, and other communications functionality. Subject to the license you grant in these Terms, you retain whatever legal right, title, and interest that you have in your User-Generated Content and you remain ultimately responsible for it.
(ii) Non-Confidentiality of Your User-Generated Content. Except as otherwise described in the Service’s posted Privacy & Cookies Policy or any Additional Terms, you agree that: (a) your User-Generated Content will be treated as non-confidential – regardless of whether you mark them “confidential,” “proprietary,” or the like – and will not be returned; and (b) WildBrain does not assume any obligation of any kind to you or any third party with respect to your User-Generated Content. Upon WildBrain’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms or any Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User-Generated Content may not be secure, and you will consider this before submitting any User-Generated Content and do so at your own risk. In your communications with WildBrain, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you post on or send to us via the Service are deemed User-Generated Content and licensed to us as set forth below. In addition, WildBrain retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. WildBrain’s receipt of your Unsolicited Ideas and Materials is not an admission by WildBrain of their novelty, priority, or originality, and it does not impair WildBrain’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
(iii) License to WildBrain of Your User-Generated Content. Except as otherwise described in any applicable Additional Terms (such as a contest official rules), which specifically govern the submission of your User-Generated Content, you grant to WildBrain the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to access, use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), display, publicly perform, transmit, publish, broadcast, translate, modify, adapt, make derivative works of, and otherwise use and exploit in any manner whatsoever, all or any portion of your User-Generated Content (and any adaptations, translations, or derivative works thereof), for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User-Generated Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User-Generated Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. In order to further effect the rights and license that you grant to WildBrain to your User-Generated Content, you also hereby grant to WildBrain, and agree to grant to WildBrain, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User-Generated Content, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User-Generated Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section 4(A)(iii).
(iv) Exclusive Right to Manage Our Service. WildBrain may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your User-Generated Content, and WildBrain may, in its sole discretion, reject, delete, move, re-format, remove or refuse to post or otherwise make use of User-Generated Content without notice or any liability to you or any third party in connection with our operation of User-Generated Content venues in an appropriate manner. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, defamatory, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms, including, without limitation, the content restrictions set forth below in the Rules. Such User-Generated Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User-Generated Content on the Service or elsewhere.
(v) Representations and Warranties Related to Your User-Generated Content. Each time you submit any User-Generated Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User-Generated Content you submit, and that, as to that User-Generated Content: (a) you are the sole author and owner of the intellectual property and other rights to the User-Generated Content, or you have a lawful right to submit the User-Generated Content and grant WildBrain the rights to it that you are granting by these Terms and any Additional Terms, all without any WildBrain obligation to obtain consent of any third party and without creating any obligation or liability of WildBrain; (b) the User-Generated Content is accurate; (c) the User-Generated Content does not and, as to WildBrain’s permitted uses and exploitation set forth in these Terms, will not infringe any intellectual property or other right of any third party; and (d) the User-Generated Content will not violate these Terms (including the Rules) or any Additional Terms, or cause injury or harm to any person.
(vi) Enforcement. WildBrain has no obligation to monitor or enforce your intellectual property rights to your User-Generated Content, to the extent permitted by applicable law, you grant us the right to protect and enforce our rights to your User-Generated Content, including by bringing and controlling actions in your name and on your behalf (at WIldBrain’s cost and expense, to which you hereby consent and irrevocably appoint WildBrain as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
b. Community Usage Rules. As a user of the Service, these Community Usage Rules (“Rules”) are here to help you understand the conduct that is expected of members of the Service’s online communities (“Communities”).
(i) Nature of Rules. Your participation in the Communities is subject to all of the Terms, including these Rules:
Your User-Generated Content. All of your User-Generated Content either must be original with you or you must have all necessary rights in it from third parties in order to permit you to comply with these Terms and any Additional Terms. Your User-Generated Content should not contain any visible logos, phrases, or trademarks that belong to third parties. Do not use any User-Generated Content that belongs to other people and pass it off as your own; this includes any content that you might have found elsewhere on the Internet. If anyone contributes to your User-Generated Content or has any rights to your User-Generated Content, or if anyone appears or is referred to in the User-Generated Content, then you must also have their permission to submit such User-Generated Content to WildBrain (for example, if someone has taken a picture of you and your friend, and you submit that photo to WildBrain as your User-Generated Content, then you must obtain your friend’s and the photographer’s permission to do so.).
Speaking of Photos: No Pictures, Videos, or Images of Anyone Other Than You and Your Friends and Family. If you choose to submit photos to the Service, link to embedded videos, or include other images of real people, then make sure they are of you or of you and someone you know – and only if you have their express permission to submit it.
Act Appropriately. All of your Service activities must be venue appropriate, as determined by us. Be respectful of others’ opinions and comments so we can continue to build Communities for everyone to enjoy. If you think your User-Generated Content might offend someone or be embarrassing to someone, then chances are it probably will and it doesn’t belong on the Service. Cursing, harassing, bullying, stalking, insulting comments, personal attacks, gossip, and similar actions are prohibited. Your User-Generated Content must not threaten, abuse, or harm others, and it must not include any negative comments that are connected to any prohibited grounds of discrimination such as race, national origin, gender, sexual orientation, or physical handicap. Your User-Generated Content must not be defamatory, slanderous, indecent, obscene, pornographic, or sexually explicit.
Do Not Use for Commercial or Political Purposes. Your User-Generated Content must not advertise or promote a product or service or other commercial activity, or a politician, public servant, or law.
Do Not Use for Inappropriate Purposes. Your User-Generated Content must not promote any infringing, illegal, or other similarly inappropriate activity. User-Generated Content that constitutes “junk mail”, “spam”, “chain letters”, “pyramid schemes”, and other forms of solicitation, or the sending of commercial electronic messages is prohibited.
Be Honest and Do Not Misrepresent Yourself or Your User-Generated Content. Do not impersonate any other person, user, or company, and do not submit User-Generated Content that you believe may be false, fraudulent, deceptive, inaccurate, or misleading, or that misrepresents your identity or affiliation with a person or company. Do not forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting or provide false or misleading representations in the sender information, subject line, locator, or content of any electronic message.
Others Can See. We hope that you will use the Communities to exchange information and content and have venue appropriate discussions with other members. However, please remember that the Communities are public or semi-public and User-Generated Content that you submit on the Service within a Community may be accessible and viewable by other users. Do not submit personally identifying information (e.g., first and last name together, password, phone number, address, credit card number, medical information, email address, or other personally identifiable information or contact information) on Community spaces and take care when disclosing this type of information to others.
Don’t Share Other Peoples’ Personal Information. Your User-Generated Content should not reveal another person’s address, phone number, e-mail address, social security or social insurance number, credit card number, medical information, financial information, or any other personally identifiable information unless you have the individual’s consent to do so.
Don’t Damage the Service or Anyone’s Computers or Other Devices. Your User-Generated Content must not submit viruses, Trojan horses, spyware, or any other technologies or malicious code that could impact the operation of the Service or any computer or other Device.
If you submit User-Generated Content that WildBrain reasonably believes violates these Rules, then we may take any legally available action that we deem appropriate, in our sole discretion. However, we are not obligated to take any action not required by law. We may require, at any time, proof of the permissions referred to above in a form acceptable to us. Failure to provide such proof may lead to, among other things, the User-Generated Content in question being removed from the Service.
(ii) Your Interactions With Other Users; Disputes. You are solely responsible for your interaction with other users of the Service, whether online or offline. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of \your other online activities.
c. Alerting Us of Violations. If you discover any content that violates these Terms, then you may report it to us communications@wildbrain.com. For alleged infringements of intellectual property rights, see Sections 5 and 6, below.
5. Procedure For Alleging Copyright Infringement
a. DMCA Notice. WildBrain will respond appropriately to notices of alleged copyright infringement that comply with applicable laws (for example, in the United States, the U.S. Digital Millennium Copyright Act (“DMCA”) and in England and Wales the Copyright, Designs and Patents Act 1988 (“CDPA”)), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner’s) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: “DMCA/CDPA Copyright Infringement Notice”;
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(iv) your full name, address, telephone number and email address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury if you reside in the U.S. and in good faith and to the best of your knowledge if you reside in the EU, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
WildBrain will only respond to DMCA/CDPA Notices that it receives by mail, email or facsimile at the addresses below:
By Mail:
DHX Worldwide Limited dba WildBrain
1 Queen Caroline Street, 2nd Floor
London W6 9HQ
United Kingdom
Attn: Director of Legal Services
By email: DMCA@wildbrain.com
By Facsimile: +44 020-8563-6465
It is often difficult to determine if your copyright has been infringed. WildBrain may elect to not respond to DMCA/CDPA Notices that do not substantially comply with all of the foregoing requirements, and WildBrain may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA and/or the CDPA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA/CDPA Counter-Notification.
Without limiting WildBrain’s other rights, WildBrain may, in appropriate circumstances, terminate a repeat infringer’s access to the Service and any other website owned or operated by WIldBrain.
b. Counter-Notification. If access on the Service to a work that you submitted to WildBrain is disabled or the work is removed as a result of a DMCA/CDPA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA/CDPA Counter-Notification to the addresses above. Your DMCA/CDPA Counter-Notification should contain the following information:
(i) a legend or subject line that says: “DMCA/CDPA Counter-Notification”;
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL or page of the Service from which the material was removed or access to it disabled);
(iii) a statement made by you, under penalty of perjury if you reside in the U.S. and in good faith and to the best of your knowledge if you reside in the EU, 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;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) in relation to U.S. residents, a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and in relation to EU residents, the exclusive jurisdiction of the Courts of England and Wales; and
(vi) your electronic or physical signature.
Please note that the DMCA/CDPA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA/CDPA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA/CDPA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA/CDPA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA/CDPA Copyright Infringement Notice.
6. Procedure For Alleging Infringement of Other Intellectual Property
If you own intellectual property other than copyrights and believe that your intellectual property has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice to the addresses set forth above that includes all of the following:
(a) a legend or subject line that says: “Intellectual Property Infringement Notice”;
(b) a description of the intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL or page of the Service on which the material appears);
(d) your full name, address, telephone number and email address;
(e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the owner of the intellectual property, its agent, or the law;
(f) a statement by you, made under penalty of perjury if you reside in the U.S. and in good faith and to the best of your knowledge if you reside in the EU, that all the information in your notice is accurate, and that you are the owner of the intellectual property at issue (or, if you are not the owner, then your statement must indicate that you are authorized to act on the behalf of the owner of the intellectual property that is allegedly infringed); and
(g) your electronic or physical signature.
We will act on such notices in our sole discretion. Any user of the Service that fails to respond satisfactorily to WildBrain with regard to any such notice is subject to suspension or termination. We may send the information that you provide in your notice to the person who provided the allegedly infringing material.
7. Notices and Questions
You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Service, or in another reasonable manner that we may elect; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address by updating your account information.
If you have a question regarding using the Service, you may contact us at communications@wildbrain.com.
WildBrain is registered in the United Kingdom under company number 5786060, and our registered office is 1 Queen Caroline Street, 2nd Floor, London W6 9HQ. Our main trading address is 1 Queen Caroline Street, 2nd Floor, London W6 9HQ. Our VAT number is GB 887 136 486.
8. Links by You to the Service
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any Trademarks, (b) the links and the content on your website do not suggest any affiliation with WildBrain or cause any other confusion or damage our reputation or take advantage of it, and (c) the links and the content on your website do not portray WildBrain or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to WildBrain. WildBrain reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
9. Linked-To Websites; Advertisements; Dealings with Third Parties
a. Linked Services; Advertisements. The Service may contain links, as part of third-party ads on the Service or otherwise, to or from third-party websites (“Linked Services”), including websites operated by advertisers, licensors, licensees, and certain other third parties who may have business relationships with WildBrain. WildBrain may have no control over the content, operations, policies, terms, or other elements of Linked Services, and WildBrain does not assume any obligation to review any Linked Services. WildBrain does not endorse, approve, or sponsor any Linked Services, or any third-party content, advertising, information, materials, products, services, or other items. Furthermore, WildBrain is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such Services. Finally, to the extent permitted by law, WildBrain will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third-party Linked Services. Any activities you engage in connection with any of the same are subject to the privacy and other policies, terms and conditions of use and/or sale, and rules issued by the operator of the Linked Services. WildBrain disclaims all liability in connection therewith.
b. Dealings with Third Parties. Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Linked Services or advertisements) are solely between you and the third party (including issues related to the content of third-party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). WildBrain disclaims all liability in connection therewith.
10. Wireless and Location-Based Features
a. Wireless Features. The Service may offer certain features and services that are available to you via your wireless Device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless Device (collectively, “Wireless Features”). Standard messaging, data, and other fees may be charged by your carrier to participate in Wireless Features. Fees and charges may appear on your wireless bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless Device. You should check with your carrier to find out what plans are available and how much they cost. Contact your carrier with questions regarding these issues.
b. Terms of Wireless Features. With respect to the Wireless Features for which you are registered, we may send communications to your wireless Device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify us of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes.
c. Location-Based Features. If you have enabled GPS, geo-location or other location-based features on any mobile app(s) or feature(s), you acknowledge that your Device location will be tracked and may be shared with others consistent with the Privacy & Cookies Policy. Some mobile app(s) or feature(s) allow for you to disable location-based features or manage preferences related to them. However, you can terminate Device location tracking by us by disinstalling any mobile app(s) or feature(s). The location-based services offered in connection with our mobile app(s) or feature(s) are for individual use only and should not be used or relied on as an emergency locator system, used while driving or operating vehicles, or used in connection with any hazardous environments requiring fail-safe performance, or any other situation in which the failure or inaccuracy of use of the location-based services could lead directly to death, personal injury, or severe physical or property damage. The location-based services are not suited or intended for family finding purposes, fleet tracking, or any other type of business or enterprise use – other products exist today that may be used specifically for these purposes.
11. Dispute Resolution (Not applicable to residents of Quebec, Canada)
a. First – Try to Resolve Disputes and Excluded Disputes – Applicable to All Users. If any controversy, allegation, or claim arises out of or relates to the Service, the Content, your User-Generated Content, these Terms, or any Additional Terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of WildBrain’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 11(D)), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 11(A). Your notice to us must be sent via email to: communications@wildbrain.com. For a period of sixty (60) days from the date of receipt of notice from the other party, WildBrain and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or WildBrain to resolve the Dispute or Excluded Dispute on terms with respect to which you and WildBrain, in each of our sole discretion, are not comfortable. If you reside in the U.S. (and as applicable to U.S. residents), certain portions of this Section 11 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and WildBrain agree that we intend that this Section 11 satisfies the “writing” requirement of the Federal Arbitration Act.
b. (1) Binding Arbitration Applicable to U.S. Residents. If we cannot resolve a Dispute as set forth in Section 11(A) (or agree to arbitration in writing with respect to an Excluded Dispute) within sixty (60) days of receipt of the notice, then ANY AND ALL DISPUTES ARISING BETWEEN YOU AND WILDBRAIN (WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT— INCLUDING, BUT NOT LIMITED TO, FRAUD, ANY OTHER INTENTIONAL TORT OR NEGLIGENCE,—COMMON LAW, CONSTITUTIONAL PROVISION, RESPONDEAT SUPERIOR, AGENCY OR ANY OTHER LEGAL OR EQUITABLE THEORY), WHETHER ARISING BEFORE OR AFTER THE EFFECTIVE DATE OF THESE TERMS, MUST BE RESOLVED BY FINAL AND BINDING ARBITRATION. THIS INCLUDES ANY AND ALL DISPUTES BASED ON ANY PRODUCT OR SERVICE PURCHASED THROUGH THE SERVICE OR ADVERTISING AVAILABLE ON OR THROUGH THE SERVICE. For U.S. residents, the Federal Arbitration Act (“FAA”), not state law, shall govern the arbitrability of all disputes between WildBrain and you regarding these Terms (and any Additional Terms) and the Service, including the “No Class Action Matters” Section below. BY AGREEING TO ARBITRATE, EACH PARTY IS GIVING UP ITS RIGHT TO GO TO COURT AND HAVE ANY DISPUTE HEARD BY A JUDGE OR JURY. WildBrain and you agree, however, that the applicable state, federal or provincial law, as contemplated in Section 11(H) below, shall apply to and govern, as appropriate, any and all claims or causes of action, remedies, and damages arising between you and WildBrain regarding these Terms and the Service, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to any jurisdiction’s choice of law principles.
Any Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except as modified herein, and the arbitration will be administered by the AAA. If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling to set a hearing then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of WildBrain consent to in writing. If an in-person arbitration hearing is required and you are a U.S. resident, then it will be conducted in Los Angeles, California. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require WildBrain to pay a greater portion or all of such fees and costs in order for this Section 11 to be enforceable, then WildBrain will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitration will be conducted by a single arbitrator who will apply and be bound by these Terms and any Additional Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration and class action waiver provisions are for the court to decide. This arbitration provision shall survive termination of these Terms or the Service. You can obtain AAA and JAMS procedures, rules, and fee information as follows: AAA: 800.778.7879 and www.adr.org and JAMS: 800.352.5267 and www.jamsadr.com.
(2) Binding Arbitration Applicable to Canadian Residents. In Canada, if a Dispute is not resolved as set forth in Section 11(A), the parties involved in the Dispute may agree to resolve the Dispute using final and binding arbitration. If the parties elect to use arbitration, claims shall be referred to ADR Institute of Canada. For a copy of the procedure to file a claim, or for other information about this organization, contact them as follows: www.adrcanada.ca. If an in-person arbitration hearing is required and you are a Canadian resident, then it will be conducted in Toronto, Ontario and in the English language.
c. Limited Time to File Claims Applicable to U.S. Residents. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT A EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 11(A)) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED. Commencing means, as applicable: (a) by delivery of written notice as set forth above in Section 11(A); (b) filing for arbitration as set forth in Section 11(B)(1); or (c) filing an action in state, Federal or provincial court.
d. Injunctive Relief Applicable to U.S. and Canadian Residents. The foregoing provisions of this Section 11 will not apply to any legal action taken by WildBrain to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Service, any Content, your User-Generated Content and/or WildBrain’s intellectual property rights (including such WildBrain may claim that may be in dispute), WildBrain’s operations, and/or WildBrain’s products or services.
e. No Class Action Matters Applicable to U.S. Residents. YOU AND WILDBRAIN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 11(B)(1) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 11(F). Notwithstanding any other provision of this Section 11, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
f. Jurisdictional Issues Applicable to All Users. Except where arbitration is provided above or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute arising hereunder may only be instituted, if you are a resident of the U.S., in state or Federal court in State of California in Los Angeles County, or if residing in Canada, in the Ontario Superior Court of Justice in Toronto, Canada. If you are a resident residing in the EU, the courts of England and Wales shall have exclusive jurisdiction over any Dispute and Excluded Dispute. Accordingly, you and WildBrain consent to the exclusive personal jurisdiction and venue of such courts for such matters.
g. Small Claims Matters Are Excluded from Arbitration Requirement Applicable to All Users. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court of competent jurisdiction.
h. Governing Law. These Terms and any Additional Terms will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, if you reside in the United States, the laws of the State of California, if you reside in Canada, the laws of the Province of Ontario and the federal laws of Canada applicable therein, or if you reside in the European Union, the laws of England and Wales, without regard to its conflicts of law provisions
12. DISCLAIMER OF REPRESENTATIONS, WARRANTIES AND CONDITIONS
The laws of certain jurisdictions, including Quebec, do not allow the exclusion or limitation of legal warranties and the exclusion or limitation of representations made concerning goods or services. If these laws apply to you, some or all of the below exclusions or limitations may not apply to you and you may have additional rights.
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE (OR ANY PART THEREOF) IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS, WITHOUT WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND. Therefore, to the fullest extent permissible by applicable law, WildBrain, its parent company and subsidiaries, and each of their respective employees, officers, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the “WildBrain Parties”), hereby disclaim and make no representations, warranties, conditions, endorsements, or promises, whether express or implied, written or oral, as to:
(a) the Service (including the Content and the User-Generated Content);
(b) the functions, features, or any other elements on, or made accessible through, the Service;
(c) any products, services, or instructions offered or referenced at or linked through the Service;
(d) security associated with the transmission of your User-Generated Content transmitted to WildBrain via the Service;
(e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your Device);
(f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable;
(g) whether any defects to, or errors on, the Service will be repaired or corrected;
(h) whether your access to the Service will be uninterrupted;
(i) whether the Service will be available at any particular time or location; and
(j) whether your use of the Service is lawful in any particular jurisdiction.
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ANY ADDITIONAL TERMS PROVIDED BY A WILDBRAIN PARTY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE WILDBRAIN PARTIES HEREBY FURTHER DISCLAIM ALL REPRESENTATIONS, CONDITIONS, AND WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, COLLATERAL OR STATUTORY, INCLUDING THE WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
13. LIMITATIONS OF OUR LIABILITY
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY OR CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
TO THE EXTENT PERMITTED UNDER ANY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL ANY WILDBRAIN PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including loss profits, loss of use, loss of data, fines, fees, penalties, personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
(a) the Service (including the Content and the User-Generated Content);
(b) your use of or inability to use the Service, or the performance of the Service;
(c) any action taken in connection with an investigation by WildBrain Parties or law enforcement authorities regarding your access to or use of the Service;
(d) any action taken in connection with copyright or other intellectual property owners or other rights owners;
(e) any errors or omissions in the Service’s technical operation; or
(f) any damage to any user’s computer, hardware, software, modem, or other equipment or technology, including damage from any security breach or from any virus, bugs, tampering, fraud, error, omission, interruption, defect, delay in operation or transmission, computer line, or network failure or any other technical or other malfunction, including losses or damages in the form of lost profits, loss of goodwill, loss of data, work stoppage, accuracy of results, or equipment failure or malfunction. The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if WildBrain Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Service).
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND THE EXCLUSION OF LIABILITY SET OUT ABOVE DOES NOT APPLY, IN NO EVENT WILL WILDBRAIN PARTIES’ TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE SERVICE AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID WILDBRAIN TO ACCESS THE SERVICE OR IN CONNECTION WITH THE TRANSACTION(S) THAT UNDERLIE THE CLAIM(S); PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE. FOR PURPOSES OF CLARITY, THE PRIOR SENTENCE DOES NOT EXPAND OR LIMIT ANY EXPRESS, WRITTEN PRODUCT WARRANTY THAT IS PROVIDED BY US.
U.S. residents further understand and expressly agree that all rights under Section 1542 of the Civil Code of California (“Section 1542”) and any similar law of any state or territory of the United States that may be applicable with respect to the foregoing release are hereby expressly and forever waived. You acknowledge that Section 1542 provides that: “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.” The releases hereunder are intended to apply to all claims not known or suspected to exist with the intent of waiving the effect of laws requiring the intent to release future unknown claims.
14. Waiver of Injunctive or Other Equitable Relief
WHERE PERMITTED BY APPLICABLE LAW (WHICH DOES NOT INCLUDE QUEBEC), IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY WILDBRAIN (INCLUDING YOUR LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF WILDBRAIN.
15. Updates to Terms
These Terms (or if applicable Additional Terms), in the form posted at the time of your use of the applicable services to which it applies, shall govern such use (including transactions entered during such use). AS OUR SERVICE EVOLVES, THE TERMS AND CONDITIONS UNDER WHICH WE OFFER THE SERVICE MAY PROSPECTIVELY BE MODIFIED AND WE MAY CEASE OFFERING THE SERVICE UNDER THE TERMS OR ADDITIONAL TERMS FOR WHICH THEY WERE PREVIOUSLY OFFERED. ACCORDINGLY, EACH TIME YOU SIGN IN TO OR OTHERWISE USE THE SERVICE YOU ARE ENTERING INTO A NEW AGREEMENT WITH US ON THE THEN APPLICABLE TERMS AND CONDITIONS AND YOU AGREE THAT WE MAY NOTIFY YOU OF OTHER TERMS BY POSTING THEM ON THE SERVICE (OR IN ANY OTHER REASONABLE MANNER OF NOTICE WHICH WE ELECT), AND THAT YOUR USE OF THE SERVICE AFTER SUCH NOTICE CONSTITUTES YOUR GOING FORWARD AGREEMENT TO THE OTHER TERMS FOR YOUR NEW USE AND TRANSACTIONS. Therefore, you should review the posted terms of use and any applicable Additional Terms each time you use the Service (at least prior to each transaction or submission). The Additional Terms will be effective as to new use and transactions as of the time that we post them, or such later date as may be specified in them or in other notice to you. However, the Terms (and any applicable Additional Terms) that applied when you previously used the Service will continue to apply to such prior use (i.e., changes and additions are prospective only) unless mutually agreed. In the event any notice to you of new, revised or additional terms is determined by a tribunal to be insufficient, the prior agreement shall continue until sufficient notice to establish a new agreement occurs. You should frequently check the home page and the email you associated with your account for notices, and you agree that the means set forth in these Terms are all reasonable manners of providing you with notice. You can reject any new, revised or Additional Terms by discontinuing use of the Service and related services.
16. General Provisions
a. WildBrain’s Consent or Approval. As to any provision in these Terms or any Additional Terms that grant WIldBrain a right of consent or approval, or permits WildBRain to exercise a right in its “sole discretion,” WildBrain may exercise that right in its sole and absolute discretion. No WildBrain consent or approval may be deemed to have been granted by WildBrain without being in writing and signed by an officer of WildBrain.
b. Indemnity. Subject to applicable law, you agree to, and you hereby, defend, indemnify, and hold WildBrain Parties harmless from and against any and all claims, damages, losses, costs, investigations, liabilities, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ or legal fees) that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any WildBrain Party, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) your User-Generated Content (including your failure to comply with the Rules set forth in Section 4(B)); (ii) your use of the Service and your activities in connection with the Service; (iii) your breach or alleged breach of these Terms or any Additional Terms; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with your use of the Service or your activities in connection with the Service; (v) information or material transmitted through your Device, even if not submitted by you, that infringes, violates, or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; and (vii) WildBrain Parties’ use of the information that you submit to us (including your User-Generated Content) (all of the foregoing, “Claims and Losses”). You will cooperate as fully required by WildBrain Parties in the defense of any Claims and Losses. Notwithstanding the foregoing, WildBrain Parties retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. WildBrain Parties reserve the right to assume the exclusive defense and control of any Claims and Losses. You will not settle any Claims and Losses without, in each instance, the prior written consent of an officer of a WildBrain Party.
c. Operation of Service; Availability of Products and Services; International Issues. The Service is operated in the United States, Canada and the European Union and is primarily intended for users located in these countries/territories. WildBrain makes no representation that the Service is appropriate or available for use beyond the U.S.A, Canada or the EU. If you use the Service from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Service may describe products and services that are available only in the U.S.A., Canada or EU (or only parts of these countries) and are not available worldwide. We reserve the right to limit the availability of the Service and/or the provision of any content, program, product, service, or other feature described or available on the Service to any person, entity, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service, or other feature that we provide. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Services.
d. Severability; Interpretation. If any provision of these Terms, or any Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against its drafter. Wherever the word “including” is used in these Terms or any Additional Terms, the word will be deemed to mean “including, without limitation,”. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms.
e. Communications. As permitted by applicable law, when you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
f. Investigations; Cooperation with Law Enforcement; Termination; Survival. WildBrain reserves the right, without any limitation, to: (i) investigate any suspected breaches of its Service security or its information technology or other systems or networks, (ii) investigate any suspected breaches of these Terms and any Additional Terms, (iii) investigate any information obtained by WildBrain in connection with reviewing law enforcement databases or complying with criminal laws, (iv) involve and cooperate with law enforcement authorities in investigating any of the foregoing matters, (v) prosecute violators of these Terms and any Additional Terms, and (vi) discontinue the Service, in whole or in part, or, except as may be expressly set forth in any Additional Terms, suspend or terminate your access to it, in whole or in part, including any user accounts or registrations, at any time, without notice, for any reason and without any obligation to you or any third party. Any suspension or termination will not affect your obligations to WildBrain under these Terms or any Additional Terms. Upon suspension or termination of your access to the Service, or upon notice from WildBrain, all rights granted to you under these Terms or any Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service. The provisions of these Terms and any Additional Terms (including the terms applicable to User-Generated Content), which by their nature should survive your suspension or termination will survive, including the rights and licenses you grant to WildBrain in these Terms, as well as the indemnities, releases, disclaimers, and limitations on liability and the provisions regarding jurisdiction, choice of law, no class action, and mandatory arbitration.
g. Assignment. WildBrain may assign its rights and obligations under these Terms and any Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of WildBrain.
h. No Waiver. Except as expressly set forth in these Terms or any Additional Terms, (i) no failure or delay by you or WildBrain in exercising any of rights, powers, or remedies hereunder will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced. For avoidance of doubt, nothing herein shall be construed to restrict WildBrain’s right to amend these Terms or any Additional Terms as otherwise permitted in those agreements.
i. California Consumer Rights. Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: www.dca.ca.gov.
j. Connectivity. You are responsible for obtaining and maintaining all Devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them.
17. Terms Applicable For Apple iOS and Microsoft Windows
If you are accessing or using the Service through a Device manufactured and/or sold by Apple, Inc. (“Apple”, with such a device herein referenced as an “Apple Device”):
(i) To the extent that you are accessing the Service through an Apple Device, you acknowledge that these Terms are entered into between you and WildBrain and, that Apple is not a party to these Terms other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in Section 1 of these Terms is subject to the permitted Usage Rules set forth in the Apple App Store Terms and Conditions (see: www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii) You acknowledge that WildBrain, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms, you acknowledge that, solely as between Apple and WildBrain, WildBrain and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
(x) You represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you are accessing or using the Service through a Device manufactured and/or sold by Microsoft (“Microsoft”, with such a device herein referenced as a “Microsoft Device”):
(i) Notwithstanding anything to the contrary in these Terms, you may download, stream, install and use one copy of the Service on up to the number of Microsoft Devices that are associated with your Microsoft account you personally own or control and which are affiliated with the Windows Live ID associated with Your Windows Phone Marketplace account. You may not install or use a copy of the Service on a Microsoft Device you do not own or control.
(ii) You acknowledge and agree that neither Microsoft, nor the manufacturer of your Microsoft Device(s), shall have any responsibility to provide to you any known applicable maintenance or support services in connection with your use of the Service.
(iii) SUBJECT TO AND WITHOUT LIMITING THE GENERALITY OF SECTION 13, MICROSOFT’S AGGREGATE LIABILITY TO YOU (WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE) SHALL NOT EXCEED THE INITIAL PURCHASE PRICE PAID BY YOU FOR THE SERVICE.
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