GOANIMATE.COM AND GOANIMATE4SCHOOLS.COM
APPLICABLE TO EDUCATION ACCOUNTS
BY PURCHASING, YOU AGREE TO BE BOUND BY: (A) ALL PROVISIONS OF THESE EDUCATION TERMS; AND (B) ALL SITE TERMS, AS THEY MAY BE UPDATED FROM TIME TO TIME IN GOANIMATE'S SOLE DISCRETION, WITH OR WITHOUT NOTICE TO YOU. THE SITE TERMS ARE INCORPORATED HEREIN BY REFERENCE, AND SHALL BE INTERPRETED AS CONSISTENT WITH THESE EDUCATION TERMS WHEREVER POSSIBLE. HOWEVER, IN THE EVENT OF ANY IRRECONCILABLE CONFLICT BETWEEN THESE EDUCATION TERMS AND THE SITE TERMS, THESE EDUCATION TERMS SHALL CONTROL.
- Your Education Site. Your Education Account differs from GoAnimate's other account offerings, in that you will be provided access to a separate, limited-access portal site (the "Education Site") which is maintained independent of and insulated from the Site, from other social networks, and from the internet/world wide web generally. The Education Site also provides additional tools and features appropriate for the educational setting, including tools and procedures for managing subordinate student access, for prior approval and moderation of uploads and other posts, etc.
- Your Education Account Features. You, and each subordinate user accessing/interacting with the Education Site under your Education Account, will similar general privileges on the Education Site as a GOPLUS account holder would have on our public Site (e.g. unlimited character creation, unlimited video length, ability to import images, etc.), and is subject to the same general limitations, terms and conditions, except to the extent limited or otherwise modified by these Education Terms. You understand and agree that the aggregate number of faculty and administration subordinate users under your Education Account shall not exceed five percent (5%) of the total number (faculty + administrator + student) of legitimate, active subordinate users thereunder, except that you are always allowed a minimum of one (1) such faculty/administrator subordinate account.
- Restriction on Use of Branded Elements, Etc. You understand that GoAnimate currently restricts access to and use of all Branded Elements by Education Account holders, and may also find it necessary from time to time to restrict your access to and use of certain other elements/features which GoAnimate is unable to license for educational use as provided herein. You further understand that you will only be able to access those design elements (e.g. scenery, environment, props, etc.) and other features which have been approved by GoAnimate as appropriate for use on the Education Site.
- Assumption of Risk; GoAnimate Reservation of Rights. You use the Site and the Education Site (including for avoidance of doubt all Materials, Tools, Our Applications, GoAnimate Templates, GoAnimate Elements, Branded Elements, and related services, content, materials and information) at your own risk. GoAnimate at all times retains the right to determine the content, appearance, design, functionality and all other aspects of the Site and the Education Site (including the right to redesign, modify, remove and alter the content, appearance, design, functionality, and other aspects of the Site and the Education Site, and any element, aspect, portion or feature thereof, from time to time), in our sole discretion. You agree that GoAnimate may decline to post, or remove from posting, any content or materials which it deems to be outside the intended scope of the Site or the Education Site, or otherwise inappropriate in any way, in its sole discretion.
- Warranties by You. You represent, warrant and/or covenant that:
- you are either (i) a legitimate educational institution duly organized, validly existing and in good standing under the laws of the jurisdiction(s) in which your business is registered, and properly certified/accredited by any certification/accreditation organizations reasonably necessary to your educational mission/purpose; or (ii) an individual faculty member or administrator at an educational institution as described in subsection (a)(i);
- you have all requisite right, power and authority to enter into and be bound by these Education Terms and the Site Terms, and to perform your obligations hereunder and thereunder; and
- all information, content and materials which you provide in connection with these Education Terms, the Site Terms, and your use of the Site, the Education Site and the Service, are true, accurate and not misleading in any material respect, and you have all necessary rights to provide all such information, content and materials.
- License Fees. You agree timely to pay all fees applicable to your Education Account plan, in accordance with GoAnimate's standard pricing and payment policies (which may include, without limitation, automatic periodic recurring charges), as updated from time to time in GoAnimate's sole discretion (“License Fees”). You understand that failure or delay in paying applicable License Fees shall be grounds for suspending or canceling your account.
- Password Security. You are solely responsible for maintaining the security of your password(s). You may not disclose your password(s) to any third party and are solely responsible for any use of or action taken under your password(s) on the Site and the Education Site. If you have reason to believe that any password is compromised, you must immediately change that password.
- Prohibited Activity
- Compliance with Laws; Fraud. The Site, Education Site, Materials, Tools, Our Applications, GoAnimate Templates, GoAnimate Elements, Branded Elements, related services, content, materials and information may be used only for lawful purposes and in a lawful manner. You agree to comply with all applicable laws, statutes, and regulations. You may not register under a false name or use an invalid or unauthorized credit card. You may not impersonate any participant or use another participant's password(s). Such fraudulent conduct is a violation of federal and state laws. Fraudulent conduct may be reported to law enforcement, and GoAnimate will cooperate to ensure that violators are prosecuted to the fullest extent of the law.
- Investigation. GoAnimate has the right, but not the obligation, to monitor any activity and content associated with the Site and/or the Education Site, and investigate as it deems appropriate. GoAnimate also may investigate any reported violation of its policies or complaints and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspension or termination of service, denying access, and/or removal of any materials you have made available on or through the Site or the Education Site (without any obligation to backup, archive or make available to you any such materials). GoAnimate reserves the right and has absolute discretion to remove, screen, or edit any content that violates these provisions or is otherwise found objectionable, in its sole discretion.
- Disclosure of Information. GoAnimate also reserves the right to report any activity that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other third parties. In order to cooperate with governmental requests, to protect GoAnimate's systems and customers/users, or to ensure the integrity and operation of GoAnimate's business and systems, GoAnimate may access and disclose any information it considers necessary or appropriate, including but not limited to user contact details, IP addressing and traffic information, usage history, and posted content.
- Privacy; Nondisclosure
- You will not, and will cause your affiliates not to, directly or indirectly disclose, convey or use any personally identifiable information or other data or information acquired by you or your affiliates from GoAnimate or its affiliates (or otherwise) in connection with these Education Terms, the Site Terms, use of the Site or Education Site, and/or the transactions contemplated hereby or thereby, except that you may use and disclose this information solely as necessary to perform your obligations under these Education Terms, provided that you ensure that every recipient uses the information only for such purpose and complies with the restrictions applicable to you related to said information.
- No Warranties. THE SITE, THE EDUCATION SITE AND THEIR RESPECTIVE CONTENT ARE PROVIDED ON AN "AS IS" BASIS. GOANIMATE MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (II) THAT THE SITE, THE EDUCATION SITE OR THEIR CONTENT WILL BE COMPLETE, ACCURATE OR OTHERWISE MEET YOUR REQUIREMENTS; (III) THAT THE SITE, THE EDUCATION SITE OR THEIR CONTENT WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, FREE OF HARMFUL CODE, OR OPERATE WITHOUT ERROR; (IV) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (V) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF GOANIMATE. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, GOANIMATE HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
- Indemnity; Limitation of Liability.
- Indemnity and Defense. You will defend, indemnify and hold harmless GoAnimate and its affiliates (and their respective employees, directors, agents and representatives) from and against any and all claims, costs, losses, damages, judgments, penalties, interest and expenses (including reasonable attorneys' fees) that arise out of or relate to: (i) any actual or alleged breach of your representations, warranties, or obligations set forth in these Education Terms and/or the Site Terms; (ii) any Animations/Submissions or other content or information you provide in connection with these Education Terms and/or the Site Terms, (iii) any culpable act or omission by you or your agent/representative in connection with the relationship described in these Education Terms, or (iv) any actual or alleged infringement of any intellectual property, proprietary or other rights of any third party, including but in no way limited to acts or omissions which may violate the privacy, publicity or other rights of subordinate users under your Education Account.
- Limitation of Liability. GOANIMATE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE EDUCATION TERMS, THE SITE TERMS, THE SITE, THE EDUCATION SITE AND/OR THEIR CONTENT, INABILITY TO USE THE SITE OR THE EDUCATION SITE, OR THOSE RESULTING FROM ANY MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO IN CONNECTION WITH THE SITE, THE EDUCATION SITE OR THEIR CONTENT.
- Damages Cap. GOANIMATE'S AGGREGATE LIABILITY TO YOU IN CONNECTION WITH THESE EDUCATION TERMS, THE SITE TERMS, AND THE RELATIONSHIP CONTEMPLATED HEREBY AND THEREBY, HOWSOEVER ARISING, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU DURING THE FIRST TWELVE (12) MONTHS (OR PORTION THEREOF) OF THE TERM.
- Applicable Law. The laws of the state of California govern these Education Terms and all terms and conditions hereof, without giving effect to any principles of conflicts of laws or the Convention on Contracts for the International Sale of Goods. Any dispute with GoAnimate or its affiliates relating in any way to these Education Terms, the Site Terms, or your use of the Site or the Education Site, shall be adjudicated in the state and federal courts located in San Francisco, California, and you consent to exclusive jurisdiction and venue in such courts, and waive all objection to such jurisdiction, including without limitation forum non conveniens.
- License Grant. By entering into these Education Terms, you grant to GoAnimate and its affiliates a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, store, reproduce, perform, display, distribute and transmit the content that you submit to GoAnimate and/or its affiliates (or that is submitted on your behalf): (i) as permitted by the Site Terms or these Education Terms; (ii) as necessary or appropriate in order to provide the services described on the Site, on the Education Site, in the Site Terms, and in these Education Terms; (iii) for archival purposes; (iv) to promote GoAnimate, the Site, Education Accounts and related products and services; and (v) to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under copyright law, referential use under trademark law, or valid license from a third party). You represent and warrant that you own, license or otherwise control all necessary rights to the content you submit to GoAnimate and its affiliates, or that is submitted through your account, and that the use of such materials by GoAnimate and its affiliates will not infringe or violate the rights of any third party. You understand that GoAnimate may wish to use and list you as a professional/business reference in various media, including but in no way limited to marketing materials, web sites, discussions, case studies and white papers, and you hereby consent to such usage, both during and after the Term.
- Term; Termination; Survival.
- Term. These Education Terms will commence on the Effective Date and continue in effect until terminated as provided herein (the “Term”).
- Termination for Cause. GoAnimate may terminate these Education Terms, your account, Site access and/or Education Site access for cause (defined as material breach of Education Terms or Site Terms, including but in no way limited to nonpayment of License Fees) at any time, immediately upon giving you written notice (email will suffice) of such termination.
- Termination for Convenience. Either party may terminate these Education Terms at any time by giving the other party thirty (30) days' prior written notice (email will suffice) of its intent so to terminate.
- No Refunds. In the event of a termination by GoAnimate pursuant to subsection b., or a termination by you pursuant to subsection c., GoAnimate will have no obligation to refund any amounts previously paid.
- Survival. The following Sections will survive termination of these Education Terms for any reason: 4 through 13, subsection 14.d, this subsection 14.e, and 15. For avoidance of doubt, (i) upon the expiration or earlier termination of these Education Terms, all rights granted hereunder shall immediately terminate, including but in no way limited to termination of your rights to use for any purpose any Animations/Submissions previously created, and you must immediately cease all such uses; and (ii) upon any downgrade of your Education Account to a lower-tier account, all rights granted you hereunder which were available only to by virtue of your status as a Education Account holder shall immediately terminate, until such time as you once again upgrade to a Education Account, and you must immediately cease all such disallowed uses.
- Miscellaneous Provisions
- Entire Agreement. These Education Terms, the Site Terms and any other terms and conditions incorporated herein or therein by reference, together constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede and cancel all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with the subject matter hereof.
- No Agency; Third-Party Beneficiary. The relationship between you and GoAnimate in connection with these Education Terms , the Site Terms, the Site, the Education Site and their use are, and shall at all times be deemed, one of independent contractors. Neither you nor GoAnimate is the agent, fiduciary, trustee or representative of the other. Nothing expressed or mentioned in or implied from these Education Terms or the Site Terms is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy, or claim under or in respect to either these Education Terms or the Site Terms.
- Severability. If any provision of these Education Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
- No Waiver. GoAnimate will not be considered to have waived any of our rights or remedies described in these Education Terms unless the waiver is in writing and signed by an officer of GoAnimate. No delay or omission by GoAnimate in exercising its rights or remedies will impair or be construed as a waiver thereof. Any single or partial exercise of a right or remedy will not preclude further exercise of any other right or remedy. GoAnimate's failure to enforce the strict performance of any provision of these Education Terms will not constitute a waiver of GoAnimate's right to subsequently enforce such provision or any other provisions of these Education Terms.