ADDITIONAL
TERMS OF USE
APPLICABLE TO BUSINESS ACCOUNTS
GoAnimate,
Inc. ("GoAnimate") requires that these Additional Terms of
Use Applicable to Business Accounts ("Business Terms") also
apply to all business accounts, currently defined to include "GOPUBLISH,"
"GOPRO" and "GORESELL" accounts (collectively the
"Business Accounts"). Capitalized terms not otherwise
defined herein shall have the meaning given them in the goanimate.com (“Site”) Terms of Use and/or Privacy
Policy (collectively, “Site Terms”).
BY PURCHASING,
YOU AGREE TO BE BOUND BY: (A) ALL PROVISIONS OF THESE BUSINESS
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 BUSINESS TERMS WHEREVER POSSIBLE. HOWEVER,
IN THE EVENT OF ANY IRRECONCILABLE CONFLICT BETWEEN THESE BUSINESS TERMS
AND THE SITE TERMS, THESE BUSINESS TERMS SHALL CONTROL.
1. Additional
Terms Specific to GOPUBLISH Accounts.
GOPUBLISH Business Accounts shall be subject to the following additional
terms (as described in more detail at
http://goanimate.com/business/
Subject to all terms and conditions of the Site Terms and these Business Terms, including but in no way limited to timely performance of any payment obligations set forth herein, GoAnimate grants you a limited, non-exclusive, non-transferable right and license (i) to sublicense, display and perform your Videos/Animations/Submissions on and/or through third party websites, and (ii) to accept payments of money and/or other valuable consideration in connection with exercise of the rights set forth in subsection (i) above.
2. Additional
Terms Specific to GOPRO Accounts.
GOPRO Business Accounts shall be subject to all terms set forth in
Section 1 above, and shall be further subject to the following terms
(as described in more detail at http://goanimate.com/business/
Subject to all terms and conditions of the Site Terms and these Business Terms, including but in no way limited to timely performance of any payment obligations set forth herein, GoAnimate grants you a limited, non-exclusive, non-transferable right and license (i) to produce, use and sublicense your Videos/Animations/Submissions for purposes of marketing and promoting your business, products and services, (ii) to produce, use and sublicense your Videos/Animations/Submissions for educational and training purposes, (iii) to produce and use your Videos/Animations/Submissions for other commercial purposes internal to your business, and (iv) to accept payments of money and/or other valuable consideration in connection with exercise of the rights set forth in subsections (i), (ii) and (iii) above.
3. Additional
Terms Specific to GORESELL Accounts. GORESELL Business Accounts
shall be subject to all terms set forth in Sections 1 & 2 above,
and shall be further subject to the following terms (as described in
more detail at http://goanimate.com/business/
Subject to all terms and conditions of the Site Terms and these Business Terms, including but in no way limited to timely performance of any payment obligations set forth herein, GoAnimate grants you a limited, non-exclusive, non-transferable right and license (i) to produce, use and sublicense custom Videos/Animations/Submissions for third party customers/clients, and including content, trademarks and other intellectual property licensed by or for the benefit of said third party customers/clients, and (ii) to accept payments of money and/or other valuable consideration in connection with exercise of the rights set forth in subsection (i) above.
4. Restriction
on Use of Branded Elements, Etc.; No Grant of Television or Cable Rights.
You understand and agree (i) that GoAnimate currently restricts access
to and use of all Branded Elements by Business Account holders, and
may also find it necessary from time to time to restrict your access
to and use of certain other Site elements/features which GoAnimate is
unable to license for commercial use, and (ii) that no right is granted
to display or perform any Videos/Animations/Submissions, whether in
whole or in part, over broadcast, cable or satellite television.
5.
Assumption of Risk;
GoAnimate Reservation of Rights; Termination of Rights.
a. You
use the 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 (including the right to redesign, modify, remove and alter
the content, appearance, design, functionality, and other aspects of
the 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 otherwise inappropriate
in any way, in its sole discretion.
b. You
understand and agree that all or a subset of your rights to use previously
created Videos/Animations/Submissions for commercial purposes shall
automatically terminate in the event that your Business Account is downgraded,
expires or is terminated, as follows: (i) Upon the expiration
or earlier termination of these Business Terms, all rights granted hereunder
shall immediately terminate, including but in no way limited to termination
of your rights to use for commercial purposes any Videos/Animations/Submissions
previously created, and you must immediately cease all such commercial
uses; and (ii) Upon any downgrade of your Business Account to a lower-tier
Business Account, or to a non-Business Account, all rights granted you
hereunder which were available only to the Business Account tier you
downgraded from shall immediately terminate, until such time as you
once again upgrade your account to that Business Account tier, and you
must immediately cease all such disallowed uses. You further agree
and acknowledge that GoAnimate will be entitled to obtain civil takedown
remedies (e.g. under the Digital Millenium Copyright Act of 1998, etc.)
and/or injunction(s), without any requirement to post bond, and that
you will promptly reimburse GoAnimate for the reasonable costs of taking
such actions, in addition to and not in lieu of any other remedies which
GoAnimate may have in equity or at law.
6.
Warranties by You. You represent, warrant and/or covenant
that: (a) you are either an individual, or an organization duly organized,
validly existing and in good standing under the laws of the jurisdiction(s)
in which your business is registered; (b) you have all requisite right,
power and authority to enter into and be bound by these Business Terms
and the Site Terms, and to perform your obligations hereunder and thereunder;
and (c) all information, content and materials which you providein connection
with these Business Terms, the Site Terms, and your use of the 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.
7.
Taxes. You agree that it is your responsibility to determine whether
Taxes apply to transactions facilitated through or in connection with
the Site, or otherwise involving your Videos/Animations/Submissions,
and to timely collect, report, and remit the correct Taxes to the appropriate
taxing authorities. You also agree that GoAnimate is not obligated to
determine whether Taxes apply and is not responsible to collect, report,
or remit any such Taxes. "Taxes" as used herein means any
and all sales, goods and services, use, excise, import, export, value
added, consumption and other taxes and duties assessed, incurred or
required to be collected or paid for any reason in connection with your
use of the Site, Materials, Tools, Our Applications, GoAnimate Templates,
GoAnimate Elements, Branded Elements, related services, content, materials
and information, excepting only taxes on GoAnimate's income.
8. License
Fees. You agree timely to pay all fees applicable to your
Business 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.
9.
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. If you have reason to believe
that any password is compromised, you must immediately change that password.
a.
Compliance with Laws; Fraud. The 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.
b.
Investigation. GoAnimate has the right, but not the obligation,
to monitor any activity and content associated with the 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
(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.
c.
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.
a.
GoAnimate may change the Site's Privacy Policy from time to time.
You should check the Privacy Policy regularly for changes. GoAnimate
and its affiliates may communicate with you in connection with your
use of the Site, electronically and in other media, and you hereby consent
to such communications. When you use the Site, certain personally identifiable
information (including without limitation your feedback and the e-mail
address associated with your account) may be displayed on the Site and
visible to other Site users.
b.
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 Business Terms,
the Site Terms, use of the 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 Business
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.
12.
No Warranties. THE SITE AND ITS 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
OR ITS CONTENT WILL BE COMPLETE, ACCURATE OR OTHERWISE MEET YOUR REQUIREMENTS;
(III) THAT THE SITE OR ITS 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.
13.
Indemnity; Limitation of Liability.
a.
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 Business Terms and/or the Site Terms; (ii) any Videos/Animations/Submissions
or other content or information you provide in connection with these
Business Terms and/or the Site Terms, (iii) any actual or alleged infringement
of any intellectual property, proprietary or other rights of any third
party, or (iv) Taxes, including without limitation the collection, reporting,
payment or failure to collect, report or pay Taxes.
b.
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 BUSINESS TERMS, THE SITE TERMS, THE SITE AND/OR ITS CONTENT,
INABILITY TO USE THE SITE, OR THOSE RESULTING FROM ANY MESSAGES RECEIVED
OR TRANSACTIONS ENTERED INTO IN CONNECTION WITH THE SITE OR ITS CONTENT.
c. Damages
Cap. GOANIMATE'S AGGREGATE LIABILITY TO YOU IN CONNECTION
WITH THESE BUSINESS 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.
14.
Applicable Law. The laws of the state of California govern these
Business 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 Business Terms, the Site Terms,
or your use of the 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.
15.
License Grant. By entering into these Business 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; (ii) as necessary or appropriate in order
to provide the services described on the Site, in the Site Terms, and
in these Business Terms; (iii) for archival purposes; (iv) to promote
GoAnimate, the Site 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 of the rights to the content you submit to GoAnimate and its affiliates,
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.
16.
Term; Termination; Survival.
a.
Term. These Business Terms will commence on the Effective Date and
continue in effect until terminated as provided herein (the “Term”).
b. Termination
for Cause. GoAnimate may terminate these Business Terms, your
account and/or Site access for cause (defined as material breach of
Business 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.
c. Termination
for Convenience. Either party may terminate these Business
Terms at any time by giving the other party thirty (30) days' prior
written notice (email will suffice) of its intent so to terminate.
d. 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.
e. Survival.
The following Sections will survive termination of these Business Terms
for any reason: 5 through 15, subsection 16.d, this subsection 16.e,
and 17.
a.
Entire Agreement. These Business 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.
b.
No Agency; Third-Party Beneficiary. The relationship between
you and GoAnimate in connection with these Business Terms , the Site
Terms, the Site and its 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 Business 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 Business Terms or the Site Terms.
c.
Severability. If any provision of these Business 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.
d. No Waiver. GoAnimate will not be considered to have waived any of our rights or remedies described in these Business 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 Business Terms will not constitute a waiver of GoAnimate's right to subsequently enforce such provision or any other provisions of these Business Terms.
