TERMS OF SERVICE
Effective Date: May 26, 2015
Introduction
and Overview
Welcome! You have arrived at www.EdisonSecretLab.com and/or
are otherwise interacting with our Service (defined below), which is owned and
operated by Genius Brands International, Inc. (collectively, "Genius Brands," "we," "our," or "us"). These Terms of Service ("Terms") govern your use of any online
service location (e.g., website or
mobile app) that posts a link to these Terms ("Site"), and also applies to all features, widgets, plug-ins, applications, content, downloads
and other services that are owned and controlled by us and that are available
through or interact with a Site, and/or that post or link to these Terms
(collectively, the "Service"),
regardless of how you access or use it, whether via computer, mobile device or
otherwise. By using the Service,
you acknowledge and accept the Service's Privacy
Policy and consent to the collection and use of your data in accordance
with the Privacy Policy. By using the Service, you further agree
that Genius Brands may change, alter, or modify the settings or configurations
on your Device (defined below) in order to allow for or optimize your use of
the Service.
It's important that you read these entire
Terms; but to help facilitate your review, here is a partial list of some of
the more significant terms we want to bring to your initial attention that are
further detailed below. Capitalized
terms have the meanings given to them where defined in these Terms.
• Each time you use the
Service, these Terms and any applicable Additional Terms (defined below) then
posted apply to that use (subject to Section 18), so you should check back each time you return for any updates.
• You may only use the
Content (defined below) on the Service in connection with your permitted
activities on the Service and not in an offline environment or in connection
with another site or service. You grant us a broad license to content you
submit or post.
• Except as set forth in
the Privacy Policy that applies to
the Service, you and we do not have a confidential, fiduciary, or any other
special relationship by virtue of your use of the Service or your
communications to us through or related to the Service.
• You consent to our Privacy Policy and our practices
detailed in it.
• Many types of disputes
that may arise in connection with your access to and use of the Service are
subject to mandatory arbitration – which includes your waiver of a right
to a jury trial and to class action relief.
• We are providing the
Service to you on an "as-is" basis, without any warranty of any kind, and our
liability to you in connection with your use of the Service is very
limited. Many other limitations and
disclaimers relate to your use of the Service.
To view and print our full Privacy
Policy, click here. To view and print our full Terms of
Service, click here.
If
you want to use the Service, carefully read these entire Terms, as they
constitute a written agreement between you and us and they affect your legal
rights and obligations. The Service
is intended for parents and teachers of preliterate children and you represent
that you are at least the age of
majority and will supervise any use by your children or children under your
charge and be responsible for their use.
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 the Terms and any Additional Terms
(defined below) then posted (subject to Section
18). Therefore, do
not use the Service if you do not agree.
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 our arbitration of certain
disputes – we would not make the Service available to you.
In
some instances, both these Terms and separate guidelines, rules, or terms of
service 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. Please also review the
terms of the Service's Privacy Policy,
which you accept by using the Service.
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 Genius Brands its products and services, and similar items from our
licensors and other third parties, including all layout, information, articles,
posts, text, data, files, images, 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, logos, trade names, trade
dress, service marks, and trade identities of various parties, including those
of Genius Brands (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 Genius Brands and our licensors and certain
other third parties. All right,
title, and interest in and to the Content available via the Service is the
property of Genius Brands or our licensors or certain other third parties, and
is protected by U.S. and international copyright, trademark, trade dress,
patent and/or other intellectual property and unfair competition rights and
laws to the fullest extent possible.
Genius Brands owns the copyright in the selection, compilation,
assembly, arrangement, and enhancement of the Content on the Service.
C. Limited License.
Subject to your strict compliance with these Terms and the Additional
Terms, Genius Brands grants you a limited, non-exclusive, revocable,
non-assignable, personal, and non-transferable license to 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. The foregoing limited license (i)
does not give you any ownership of, or any other intellectual property interest
in, any Content, and (ii) may be immediately suspended or terminated for any
reason, in Genius Brands' sole discretion, and without advance notice or
liability. In some instances, we
may permit you to have greater access to and use of Content, subject to certain
Additional Terms.
D. Rights of Others.
In using the Service, you must respect the intellectual property and
other rights of Genius Brands 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. Genius Brands respects the intellectual
property rights of others. 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 6 and Section 7 below.
2. Content
You Submit and Community Usage Rules
A. User-Generated
Content.
(i) General.
Genius Brands 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, 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 Genius Brands Licensed Elements included therein, "User-Generated Content"). Genius Brands may allow you to do this
through forums, blogs, message boards, social networking environments, content
creation tools, gameplay, social communities, contact us tools, e-mail, and
other communications functionality.
Subject to the rights and license you grant in these Terms, you retain
whatever legally cognizable 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 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) Genius Brands does not assume any obligation of any kind to you or any
third party with respect to your User-Generated Content. Upon Genius Brands' 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 Genius Brands,
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, Genius Brands retains all
of the rights held by members of the general public with regard to your
Unsolicited Ideas and Materials. Genius
Brands' receipt of your Unsolicited Ideas and Materials is not an admission by Genius
Brands of their novelty, priority, or originality, and it does not impair Genius
Brands' right to contest existing or future intellectual property rights
relating to your Unsolicited Ideas and Materials.
(iii) License
to Genius Brands 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 hereby grant to Genius Brands, and you agree to
grant to Genius Brands, the non-exclusive, unrestricted, unconditional,
unlimited, worldwide, irrevocable, perpetual, and cost-free right and license
to use, copy, record, distribute, reproduce, disclose, sell, re-sell,
sublicense (through multiple levels), display, publicly perform, transmit,
publish, broadcast, translate, make derivative works of, and otherwise use and
exploit in any manner whatsoever, all or any portion of your User-Generated
Content (and 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.
In order to further effect the rights and license that you grant to Genius
Brands to your User-Generated Content, you also hereby grant to Genius Brands,
and agree to grant to Genius Brands, 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 2(A)(iii).
(iv) Exclusive Right to
Manage Our Service. Genius Brands 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 Genius Brands 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,
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 (defined in Section 2(B)).
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 and 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 Genius
Brands the rights to it that you are granting by these Terms and any Additional
Terms, all without any Genius Brands obligation to obtain consent of any third
party and without creating any obligation or liability of Genius Brands; (b)
the User-Generated Content is accurate; (c) the User-Generated Content does not
and, as to Genius Brands' 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.
Genius Brands has no obligation to monitor or enforce your intellectual
property rights to your User-Generated Content, but 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 Genius
Brands' cost and expense, to which you hereby consent and irrevocably appoint Genius
Brands 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 in the User-Generated Content,
then you must also have their permission to submit such User-Generated Content
to Genius Brands. (For example, if
someone has taken a picture of you and your friend, and you submit that photo
to Genius Brands 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, 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 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.
• 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.
• 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, e-mail 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 number, credit card number, medical
information, financial information, or any other information that may be used
to track, contact, or impersonate that individual, unless, and in the form and
by the method, specifically requested by Genius Brands.
• 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 Genius Brands 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 in the following ways:
Postal Mail: Genius Brands International, Inc., 301 N. Canon Drive, Suite #305,
Beverly Hills, CA 90210; By e-mail: info@gnusbrands.com. For alleged
infringements of intellectual property rights, see Section 6
and Section 7, below.
3. Service
and Content Use Restrictions
A. Service Use
Restrictions. You agree that you will not: (i) aside
from your purchase of goods or services offered for sale by Genius Brands or
its affiliates, 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, harassing, or abusive, or that
violate any right of any third party, or are otherwise objectionable to Genius
Brands; (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, Genius
Brands, 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; (vii) harvest or otherwise collect or store any
information (including personally identifiable information about other users of
the Service, including e-mail 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 Genius Brands Licensed Elements, if
applicable); (vi) you will not copy, modify, reproduce, archive, sell, lease,
rent, exchange, create derivative works 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 Genius Brands or, in
the case of Content from a licensor, the owner of the Content; and (vii) 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. Genius Brands 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 Genius Brands' sole
discretion, and without advance notice or liability. However, if we do so before a
subscription period of a subscription you have paid for expires, we will
provide you with a pro rata refund.
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 Genius Brands and its licensors and other third
parties. Any unauthorized use of any
Content or the Service for any purpose is prohibited.
4.
Accounts
In
order to access or use some (or potentially all) of the features on the
Service, you must first register through our online registration process at the
Site. The Service's practices governing
any resulting collection and use of your personal information are disclosed in
its Privacy Policy. If you are under the age of eighteen
(18), then you are not permitted to register as a user or otherwise use the
Service or submit personal information to us.
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 (subject to Section 5).
5. Subscriptions
and Credits
Some aspects of the Service may require a
paid subscription, with is subject to Additional Terms. Each subscription period is typically
either twelve (12) months or thirty (30) days, and unless otherwise provided in
the applicable Additional Terms, automatically renew unless you give notice of
termination prior to the end of the then current period. All sales are final. We may terminate the term of your
subscription at any time; provided, however if we do so merely for our own
convenience we will give you a pro rata credit towards other Genius Brands products
or services. We may also give away
or sell credits or loyalty points, which are nonrefundable, have no monetary
value (i.e., are not a cash account or equivalent), and are only a limited,
non-exclusive, revocable, non-assignable, personal, and non-transferable right
to use certain aspects of the Services.
6. Procedure
For Alleging Copyright Infringement
A. DMCA
Notice.
Genius Brands will respond appropriately to notices of alleged copyright
infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), 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 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 of the Service on which the material appears);
(iv) your full name,
address, telephone number, and e-mail 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, 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.
Genius Brands will only respond to DMCA
Notices that it receives by mail, e-mail, or facsimile at the addresses below:
By
Mail: Genius
Brands International, Inc.
301 N. Canon Drive, Suite #305
Beverly
Hills, CA 90210
By
E-Mail: info@gnusbrands.com
It is often difficult to determine if
your copyright has been infringed. Genius
Brands may elect to not respond to DMCA Notices that do not substantially
comply with all of the foregoing requirements, and Genius Brands may elect to
remove allegedly infringing material that comes to its attention via notices
that do not substantially comply with the DMCA.
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 Counter-Notification.
Without limiting Genius Brands' other
rights, Genius Brands may, in appropriate circumstances, terminate a repeat
infringer's access to the Service and any other website owned or operated by Genius
Brands. See
Section 4, above.
B. Counter-Notification. If access on the Service to a work that
you submitted to Genius Brands is disabled or the work is removed as a result
of a DMCA 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
Counter-Notification to the addresses above. Your DMCA Counter-Notification should
contain the following information:
(i) a
legend or subject line that says:
"DMCA 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 of the Service from which
the material was removed or access to it disabled);
(iii) a statement under
penalty of perjury that you have a good faith belief that the material was
removed or disabled as a result of mistake or misidentification of the material
to be removed or disabled;
(iv) your full name,
address, telephone number, e-mail address, and the username of your account;
(v) 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
(vi) your electronic
or physical signature.
Please note that the DMCA 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
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 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
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 Copyright
Infringement Notice.
7. 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 of the Service on
which the material appears);
(d) your full
name, address, telephone number, and e-mail 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, 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 Genius Brands 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.
8. Notices, Questions and Customer Service
You
agree that: (1) we may give you notices of new, revised or changed terms and
other important matters by prominently posting notice on the home page of the
Service, or in another reasonable manner; and (2) we may contact you by mail or
e-mail sent to the address provided by you. You agree to promptly notify us if you
change your e-mail or mailing address by updating your Account. All legal notices to us must be sent to Genius
Brands International, Inc., 301 N. Canon Drive, Suite #305, Beverly Hills, CA
90210, Attn. Legal Dept.
If
you have a question regarding using the Service, you may contact Genius Brands Customer
Support in the following ways: Postal Mail: Genius Brands International, Inc.,
301 N. Canon Drive, Suite #305, Beverly Hills, CA 90210; By e-mail:
info@gnusbrands.com. You acknowledge that the provision of
customer support is at Genius Brands' sole discretion and that we have no
obligation to provide you with customer support of any kind. We may provide you with customer support
from time to time, at our sole discretion, provided that you have created an
Account and that you submit your customer support inquiries using such Account.
9. Product
Specifications; Pricing; Returns; Typographical Errors
We
do our best to describe every product or service offered on this Service as
accurately as possible. However, we
are human, and therefore we do not warrant that product specifications,
pricing, or other content on the Service is complete, accurate, reliable,
current, or error-free. In the
event of any errors relating to the pricing or specifications, we shall have
the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other
account prior to cancellation, we will issue a credit to your account in the
amount of the charge. Additional
terms may apply. If a physical
product you purchased from us is not as described, or if it is damaged or
defective, your sole remedy is to return it for exchange in unused condition,
complete and undamaged, in the original packaging.
10. Seller;
Risk of Loss
Genius
Brands is the seller of the subscription video services, DVDs, and other
products and services made available for sale on the Service. All items purchased from the Service are
made pursuant to a shipment contract.
This means that the risk of loss and title for such items pass to you
upon delivery to the carrier.
11.
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 Genius
Brands or cause any other confusion, and (c) the links and the content on your
website do not portray Genius Brands 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 Genius Brands. Genius Brands 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.
12. Third-Party
Sites; Advertisements; Dealings with Third Parties
A. Third-Party Content and
Sites; Advertisements. The Service may contain third party
plug-ins and/or or applications, and/or links to third-party websites that are
not owned, controlled or operated by Genius Brands, and the Service may also
include links to third-party ads on the Service or otherwise, to or from
third-party websites (collectively, "Third-Party
Sites"), including websites operated by advertisers, licensors, licensees,
and certain other third parties who may have business relationships with Genius
Brands. Genius Brands may have no
control over the content, operations, policies, terms, or other elements of
Third-Party Sites, and Genius Brands does not assume any obligation to review
any Third-Party Sites. Genius
Brands does not endorse, approve, or
sponsor any Third-Party Sites, or any third-party content, advertising,
information, materials, products, services, or other items. Furthermore, Genius Brands is not
responsible for the quality or delivery of the products or services offered,
accessed, obtained by or advertised at such sites. Finally, Genius Brands 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 Sites.
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 Third-Party Sites. Genius Brands 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 Third-Party Sites) 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). Genius Brands disclaims all liability in
connection therewith.
13. 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. You agree that as to the Wireless
Features for which you are registered for, 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 Genius Brands of any changes to
your wireless contact information (including phone number) and update your
Account 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
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 uninstalling 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.
14. Dispute
Resolution
Certain
portions of this Section 14 are deemed to be a "written agreement to arbitrate"
pursuant to the Federal Arbitration Act.
You and Genius Brands agree that we intend that this Section 14
satisfies the "writing" requirement of the Federal Arbitration Act. This Section 14 can only be amended by
mutual agreement.
A. First – Try To
Resolve Disputes and Excluded Disputes. 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 Genius Brands' actual or alleged intellectual property rights (an
"Excluded Dispute", which includes
those actions set forth in Section 14.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
14.A. Your notice to us must be
sent to: Genius Brands International, Inc., 301 N. Canon Drive, Suite #305,
Beverly Hills, CA 90210, Attn. Legal Dept.
For a period of sixty (60) days from the date of receipt of notice from
the other party, Genius Brands 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 Genius Brands to resolve the Dispute or Excluded Dispute on terms
with respect to which you and Genius Brands, in each of our sole discretion,
are not comfortable.
B. Forums For Alternative
Dispute Resolution
(i) Arbitration. If we cannot resolve a
Dispute as set forth in Section 14.A within sixty (60) days of receipt of the
notice, then either you or we may submit the Dispute to formal arbitration in
accordance with this Section 14.B.
If we cannot resolve an Excluded Dispute as set forth in Section 14.A
within sixty (60) days of receipt of the notice, then either you or we may
submit the Excluded Dispute to formal arbitration only if you and Genius Brands
consent, in a writing signed by you and an Officer or legal representative of Genius
Brands, to have that Excluded Dispute subject to arbitration. In such a case (and only in such a
case), that Excluded Dispute will be deemed a "Dispute" for the remainder of
this Section 14.B.
Upon expiration of the applicable
sixty-day period and to the fullest extent permitted by applicable law, a
Dispute will be resolved solely by binding arbitration in accordance with the
then-current Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). If the Dispute has a claimed value of
not more than $250,000, then the arbitration will be heard and determined by a
single neutral arbitrator who is a retired judge or a lawyer with not less than
fifteen (15) years experience as a practicing member of the bar in the
substantive practice area related to the Dispute, who will administer the
proceedings in accordance with the AAA's Supplementary Procedures for Consumer
Related Disputes. If the Dispute
has a claimed value of more than $250,000, or if Genius Brands elects in its
sole discretion to bear the costs of arbitration in excess of those that would
occur for a proceeding before a single neutral arbitrator, then the arbitration
will be heard and determined by a three-member panel, with one member to be
selected by each party and the third (who will be chair of the panel) selected
by the two party-appointed members or by the AAA in accordance with the Commercial
Arbitration Rules. The arbitrator
or arbitration panel, as the case may be, will apply applicable law and the
provisions of these Terms and any Additional Terms, will determine any Dispute
according to the applicable law and facts based upon the record and no other
basis, and will issue a reasoned award.
If you and Genius Brands do not both consent to the arbitration of an
Excluded Dispute as set forth in the immediately preceding paragraph of this
Section 14.B(i), then this paragraph and the remainder of this Section 14.B
will not apply to the Excluded Dispute.
If a party properly submits the Dispute
to the AAA for formal arbitration and the AAA is unwilling or unable to set a
hearing date within sixty (60) days of the filing of a "demand for arbitration,"
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 Genius
Brands consent to in writing. The
substantive practice area requirements for the arbitrator and the $250,000
threshold for a the number of arbitrators assigned to the Dispute set forth in
the paragraph above for the AAA arbitration will also apply to any such
arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures,
rules, and fee information as follows:
AAA: 800.778.7879 JAMS: 949.224.1810
http://www.adr.org/ http://www.jamsadr.com/
(ii) Nature, Limitations, and
Location of Alternative Dispute Resolution.
In arbitration, as with a court, the arbitrator must honor the terms of
these Terms (and any Additional Terms) and can award the prevailing party
damages and other relief (including attorneys' fees). However, WITH ARBITRATION (A) THERE IS
NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE
SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE
ARBITRATION OUTCOME IS LIMITED. All
parties to the arbitration will have the right, at their own expense, to be
represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is
required, then it will be conducted in the "metropolitan statistical area" (as
defined by the U.S. Census Bureau) where you are a resident at the time the
Dispute is submitted to arbitration.
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 Genius Brands to pay a greater portion or all
of such fees and costs in order for this Section 14 to be enforceable, then Genius
Brands will have the right to elect to pay the fees and costs and proceed to
arbitration, or to decline to do so and have the matter resolved through the
courts. Discovery will be permitted
pursuant to the applicable arbitration rules. The arbitrator's decision must consist
of a written statement stating the disposition of each claim of the Dispute,
and must provide a statement of the essential findings and conclusions on which
the decision and any award (if any) is based. Judgment on the arbitration decision and
award (if any) may be entered in or by any court that has jurisdiction over the
parties pursuant to Section 9 of the Federal Arbitration Act.
C. Limited Time To File
Claims. 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 14.A) WITHIN ONE (1) YEAR AFTER THE
DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
D. Injunctive Relief.
The foregoing provisions of this Section 14 will not apply to any legal
action taken by Genius Brands 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 Genius Brands' intellectual property rights (including such Genius
Brands may claim that may be in dispute), Genius Brands' operations, and/or Genius
Brands' products or services.
E. Small Claims
Matters Are Excluded From Arbitration Requirement.
Notwithstanding the foregoing, either of us may bring qualifying claim
of Disputes (but not Excluded Disputes) in small claims court, subject to
Section 14.G.
F. No Class Action
Matters. Disputes will be arbitrated only on an
individual basis and will not be consolidated with any other arbitration or
other proceedings that involve any claim or controversy of any other
party. But if, for any reason, any
court with competent jurisdiction or any arbitrator selected pursuant to
Section 14.B(i) holds that this restriction is unconscionable or unenforceable,
then our agreement in Section 14.B to arbitrate will not apply and the Dispute
must be brought exclusively in court pursuant to Section 14.G.
G. Federal and State
Courts in Los Angeles. Except to the extent that arbitration is
required in Section 14.B, and except as to the enforcement of any arbitration
decision or award, any action or proceeding relating to any Dispute or Excluded
Dispute may only be instituted in state or federal court in Los Angeles, CA. Accordingly, you and Genius Brands consent
to the exclusive personal jurisdiction and venue of such courts for such
matters.
15. DISCLAIMER
OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR SOLE
RISK.
THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE", AND
"WITH ALL FAULTS" BASIS. Therefore,
to the fullest extent permissible by law, Genius Brands International, Inc. and
its subsidiaries and each of their respective employees, directors, members,
managers, shareholders, agents, vendors, licensors, licensees, contractors,
customers, successors, and assigns (collectively, "Genius Brands Parties")
hereby disclaim and make no representations, warranties, endorsements, or
promises, express or implied, 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 Genius
Brands or 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
ADDITIONAL TERMS PROVIDED BY A GENIUS BRANDS PARTY, GENIUS BRANDS PARTIES
HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY, 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.
Some jurisdictions limit or do not allow the disclaimer of
implied or other warranties so the above disclaimers may not apply to the
extent such jurisdictions' laws are applicable.
16. LIMITATIONS
OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY GENIUS BRANDS PARTIES BE
RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including 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 Genius Brands 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 Genius
Brands 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).
Some jurisdictions do not allow the exclusion or limitation
of incidental or consequential damages of the sort that are described above, so
the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED
IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
NO EVENT WILL GENIUS BRANDS 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 GENIUS BRANDS 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 GENIUS BRANDS OR A MANUFACTURER OF A PHYSICAL PRODUCT.
17. Waiver
of Injunctive or Other Equitable Relief
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 GENIUS BRANDS (INCLUDING YOUR
LICENSED USER-GENERATED CONTENT) OR A LICENSOR OF GENIUS BRANDS.
18. 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). However,
notwithstanding anything herein to the contrary, that the Terms that applied at
the beginning of an applicable paid subscription term will continue to apply
until that term expires or is terminated.
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 (EXCEPT AS TO CURRENT
SUBSCRIPTION TERMS AS EXPLAINED IN THE PRIOR SENTENCE) 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 service 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, subscriptions 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 and any then current subscription period
(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 e-mail you associated with your Account
for notices, all of which you agree are reasonable manners of providing you
notice. You can reject any new,
revised or Additional Terms by discontinuing use of the Service and related
services.
19. General
Provisions
A. Genius Brands' Consent
or Approval. As to any provision in these Terms or
any Additional Terms that grants Genius Brands a right of consent or approval,
or permits Genius Brands to exercise a right in its "sole discretion," Genius
Brands may exercise that right in its sole and absolute discretion. No Genius Brands consent or approval may
be deemed to have been granted by Genius Brands without being in writing and
signed by an officer of Genius Brands.
B. Applicable 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, the laws of the California, U.S.A., without regard to its
conflicts of law provisions.
C. Indemnity.
You agree to, and you hereby, defend, indemnify, and hold Genius Brands Parties
harmless from and against any and all claims, damages, losses, costs,
investigations, liabilities, judgments, fines, penalties, settlements,
interest, and expenses (including attorneys' fees) that directly or indirectly
arise from or are related to any claim, suit, action, demand, or proceeding
made or brought against any Genius Brands 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; (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) Genius Brands 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 Genius
Brands Parties in the defense of any Claim and Losses. Notwithstanding the foregoing, Genius
Brands Parties retain the exclusive right to settle, compromise, and pay any
and all Claims and Losses. Genius
Brands 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 Genius Brands Party.
D. Operation of Service;
Availability of Products and Services; International Issues.
Genius Brands controls and
operates the Service from its U.S.-based offices in the U.S.A., and Genius
Brands makes no representation that the Service is appropriate or available for
use beyond the U.S.A. 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. (or only parts of it) 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 and we disclaim any application to
these Terms of the Convention on Contracts for the International Sale of Goods.
E. Export Controls.
Software related to or made available by the Service may be subject to
export controls of the U.S.A. No
software from the Service may be downloaded, exported, or re-exported (i) into
(or to a national or resident of) any country or other jurisdiction to which
the U.S.A. has embargoed goods, software, technology or services (which, as of
the effective date of these Terms, includes Cuba, North Korea, Iran, Sudan, and
Syria), or (ii) to anyone on the U.S. Treasury Department's list of Specially
Designated Nationals or the U.S. Commerce Department's Table of Deny Orders, or
(iii) to anyone on the U.S. Department of Commerce's Bureau of Industry and
Security Entities List as published in the Export Administration Regulations
(including entities engaged in weapons of mass destruction proliferation in
various countries and persons and entities that are suspected of diverting U.S.
origin items to embargoed countries or terrorist end-uses). You are responsible for complying with
all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree
and warrant not to export or re-export the software to any county, or to any
person, entity, or end-user subject to U.S. export controls, including as set
forth in subsections (i) – (iii) above.
F. 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.
G. Communications.
When you communicate with us electronically, such as via e-mail and text
message, you consent to receive communications from us electronically. Please note that we are not obligated to
respond to inquiries that we receive.
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.
H. Investigations;
Cooperation with Law Enforcement; Termination; Survival.
Genius Brands 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 Genius Brands in accordance with its Privacy Policy 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 Genius Brands under these Terms or any
Additional Terms. Upon suspension
or termination of your access to the Service, or upon notice from Genius Brands,
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, which by their nature should survive your
suspension or termination will survive, including the rights and licenses you
grant to Genius Brands 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.
I. Assignment.
Genius Brands 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 Genius
Brands.
J. No Waiver.
Except as expressly set forth in these Terms or any Additional Terms,
(i) no failure or delay by you or Genius Brands in exercising any of rights,
powers, or remedies under 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.
K. U.S. Government
Restricted Rights. If you are a government end user, then
this provision applies to you. The
Service provided in connection with these Terms has been developed entirely at
private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1)
and DFARS section 252.227-7015 (or any equivalent or subsequent agency
regulation thereof), and is provided as "commercial items," "commercial
computer site" and/or "commercial computer site documentation." Consistent with DFARS section 227.7202
and FAR section 12.212 and to the extent required under U.S. federal law, the
minimum restricted rights as set forth in FAR section 52.227-19 (or any
equivalent or subsequent agency regulation thereof), any use, modification,
reproduction, release, performance, display, disclosure or distribution thereof
by or for the U.S. Government shall be governed solely by these Terms and shall
be prohibited except to the extent expressly permitted by these Terms.
L. 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: http://www.dca.ca.gov.
M. 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.
20. Terms
Applicable For Apple iOS.
If
you are accessing or using the Service through an Apple Device, the following
additional terms and conditions are applicable to you and are incorporated into
the Terms by this reference:
(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 Genius Brands and,
that Apple, Inc. ("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 App
Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html)
and any third party terms of agreement applicable to the Service.
(iii) You
acknowledge that Genius Brands, 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 Genius Brands, Genius Brands, 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 confirm
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.]
©2015 Genius Brands International, Inc.
All Rights Reserved.