Important; Read Carefully: GoAnimate, Inc. (“GoAnimate”) provides a right to use the GoAnimate Platform pursuant to these terms of service (this “Agreement”). This Agreement is a legal contract between you (if using the GoAnimate Platform in your capacity as an individual) or the legal entity you represent (e.g., your employer) (“You”) and GoAnimate. Read the terms of this Agreement carefully. By signing up for a free trial, subscribing to, or using the GoAnimate Platform, You agree to be bound by this Agreement. If You do not agree to the terms of this Agreement, do not sign up for a free trial, subscribe to, or use the GoAnimate Platform.
“Content” means videos, photos, images, audio, music, sounds, graphics, special effects, images, logos, branding, marks and other files, information and content, including, without limitation, flash animation and flash files.
“GoAnimate Assets” means the templates, characters, actions, backgrounds, props, fonts, music, sound effects, starters and other elements that GoAnimate makes available within the GoAnimate Platform.
“GoAnimate Platform” means the GoAnimate cloud-based hosted platform, which allows users to, among other things, produce a wide range of custom animated videos from scratch by using drag-and-drop tools, upload their own files and content, access pre-made templates, download, export, host and playback videos, and customize characters.
“Services” means the services that GoAnimate provides to its customers, which may include, without limitation, limited or full use of the GoAnimate Platform, the hosting and playback of Videos, customer support, and training.
“Subscription” means the then-current GoAnimate subscription plans for its users.
“Templates” means pre-made scenes which expedite and enable the creation of animated videos on the GoAnimate Platform.
“Video” means an animated video created using the GoAnimate Platform.
“Your Content” means the Content that You upload, post, or otherwise make available or provide to the GoAnimate Platform, including Your scripts.
“Your Videos” means the Videos that You produce or develop using, in whole or in part, the GoAnimate Platform.
Subject to the terms and conditions of this Agreement and the limitations imposed by Your applicable Subscription Plan (as more fully described at http://goanimate.com/business/videoplans), GoAnimate hereby grants You, solely during the term of this Agreement, (a) a non-exclusive, non-transferable right to access and use the GoAnimate Platform, solely via the Internet for Your commercial use, and (b) a perpetual license to distribute Your Videos; provided, however, that You shall not distribute Your Videos on broadcast, cable or satellite television.
GoAnimate may also offer You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable right to access and use the GoAnimate Platform, solely via the Internet for Your internal use only, on a free trial basis, not to exceed 14 days. Such trial subscription shall not include any license to distribute Your Videos.
As between the parties and except for the licenses granted by this Agreement, (a) You retain all right, title and interest, including all related intellectual property rights, in and to Your Content and (b) GoAnimate retains all right, title, and interest, including all related intellectual property rights, in and to the GoAnimate Platform, the GoAnimate Assets, Your Videos (excluding Your Content) and the other software, information and materials made available under this Agreement and all modifications to and derivative works of any and all of the foregoing (collectively, “Derivative Works”). To the extent You may have any rights to Derivative Works, You hereby assign and agree to assign to GoAnimate all right, title and interest, including all related intellectual property rights, in and to the Derivative Works. To the extent any rights cannot be assigned (such as moral rights), You hereby waive and agree never to assert them.
GoAnimate retains all rights not expressly granted to You under this Agreement. You do not have any implied rights.
You hereby grant GoAnimate a non-exclusive, royalty-free, transferable license, with rights to sublicense, to use, reproduce, display, perform and create derivative works of Your Content solely to provide the Services to You under this Agreement, including to store, offer and provide Your Videos.
GoAnimate reserves the right to monitor Your Content and Your Videos and to remove or disable Your Content and Your Videos that GoAnimate in good faith determines to be illegal, harmful, offensive, creating liability for GoAnimate or its service providers, or otherwise in violation of this Agreement or GoAnimate’s acceptable use, privacy or operating policies or those of any third party service provider.
The confidentiality of Your Content and Your Videos is important to GoAnimate. GoAnimate’s ability to display Your Videos is subject to and controlled by the privacy settings that You select for Your Videos. The “Draft” and “Private” settings enable You to limit access to Your Videos. Should You change this setting to “Public” You will be granting permission to GoAnimate and visitors to GoAnimate Site(s) to link to, utilize, use, publicly perform and publicly display Your Video. Under no circumstances will GoAnimate distribute or publicize Your Video without Your written authorization.
A user account is required to access the GoAnimate Platform and, except for GoTeam subscriptions, may be accessed and used only by those authorized individuals who are registered with GoAnimate. User access to GoTeam subscriptions is controlled by Your administrator. To open an account, You must complete the registration process by providing GoAnimate with current, complete and accurate information as prompted by the registration form. In registering for access to the GoAnimate Platform, You shall submit accurate, current and complete information about Your business or organization and promptly update such information if it changes. Should GoAnimate suspect that such information is untrue, inaccurate, not current or incomplete, GoAnimate reserves the right to suspend or terminate Your access to the GoAnimate Platform. You will choose a unique, non-transferable password. User accounts cannot be “shared” or used by more than one individual.
Except to the extent expressly permitted by applicable law notwithstanding this prohibition, You may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code for any of the GoAnimate Platform.
You shall retain all copyright, trademark and other intellectual property rights notices contained on or in each of the Videos, GoAnimate Assets, and GoAnimate Platform. You shall not remove (or attempt to remove) any digital watermark that may appear in Your Videos. Additionally, You shall neither attempt to defeat nor circumvent any digital rights management technology used by GoAnimate. You shall not use any screen capture software or technology to rip, otherwise copy or take any videos from the GoAnimate Platform.
No right is granted to display or perform any of Your Videos (in whole or in part), over any of broadcast, cable or satellite television.
Your Videos may not be assigned, transferred or used for the benefit of a third party, unless You have a current, valid Subscription and have purchased a “Transfer Rights” or “Sublicense Rights” license.
You represent and warrant to GoAnimate that You own or otherwise control and have sufficient rights and consents to provide all Your Content for use by GoAnimate in the manner contemplated by this Agreement.
GoAnimate charges a subscription fee for access to the GoAnimate Platform. You agree to pay all fees charged by GoAnimate and otherwise incurred by You. All fees are payable in advance, non-refundable and, unless otherwise stated, in US dollars.
If You fail to pay the applicable fees in a timely manner, other than fees disputed in good faith, GoAnimate may suspend or terminate Your access to either the GoAnimate Platform or certain features of the GoAnimate Platform.
You are responsible for, and will indemnify and hold GoAnimate harmless from, payment of all taxes (other than taxes based on GoAnimate’s net income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to GoAnimate under this Agreement or the delivery or license of the GoAnimate Platform or use of the GoAnimate Platform or provision of any Services. You will make all payments to GoAnimate free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to GoAnimate will be Your sole responsibility, and You agree to provide GoAnimate with official receipts issued by the appropriate taxing authority, or such other evidence as GoAnimate may reasonably request, to establish that such taxes have been paid.
This Agreement begins on the date when You sign up for a free trial or the date when You subscribe to a paid Subscription Plan, whichever date is later. If You subscribe to a monthly, quarterly or annual Subscription Plan, the Agreement will continue for a term of one month, one quarter or one year, as applicable, and will automatically renew for additional one month, one quarter or one year periods, as applicable, each subsequent period thereafter until terminated as provided for in this Section 7.
GoAnimate may terminate this Agreement if You materially breach it and fail to remedy the breach within 30 days of notice of the breach.
Should You wish to terminate this Agreement, You may turn off the auto-renew feature under Account Settings. In the event of Your termination pursuant to this Section 7, this Agreement will terminate at the end of then-current Subscription Plan term. You must continue to pay all charges incurred during the remainder of the then-current term.
GoAnimate reserves the right to change or discontinue any part of the GoAnimate Platform or Services at any time. If GoAnimate discontinues or sunsets the GoAnimate Platform or Services altogether, it will give You thirty (30) days’ prior notice.
The definitions and rights, duties and obligations of the parties that by their nature continue and survive shall survive any termination or expiration of this Agreement.
You may not export or re-export any of Your Videos or the GoAnimate Platform except in compliance with the United States Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable. The foregoing and all accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying, or disclosing of the foregoing by the U.S. Government is governed solely by the terms of this Agreement.
GoAnimate represents and warrants to You that for a period of ninety (90) days from your first use of the GoAnimate Platform, the GoAnimate Platform will function correctly in all material respects. In the event of a breach of this warranty, GoAnimate will use its reasonable commercial efforts to remedy the breach or, in GoAnimate’s discretion, may refund the fees paid for access to the GoAnimate Platform. Such remedies shall be the sole remedy by You against us for a breach of this warranty.
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE VIDEOS, ASSETS, GOANIMATE PLATFORM AND SERVICES ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND GOANIMATE HEREBY DISCLAIMS AND EXCLUDES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND SATISFACTORY QUALITY.
GoAnimate does not warrant that any of Your Videos, the GoAnimate Assets, the GoAnimate Platform, or the Services will meet Your needs or requirements or be error-free or always available or available at any particular time or that any errors or defects will be corrected.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), OR OTHERWISE.
EACH PARTY’S LIABILITY UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, EXCEED THE FEES, IF ANY, PAID OR PAYABLE BY YOU TO GOANIMATE UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. WITH RESPECT TO ANY TRIAL SUBSCRIPTION, IN NO EVENT WILL GOANIMATE’S LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY USE (OR ATTEMPTED USE) OF THE GOANIMATE PLATFORM, EXCEED FIFTY DOLLARS (USD $50).
Subject to Section 10, you shall indemnify and hold harmless GoAnimate and its officers, directors, employees and agents from and against liabilities, costs, losses, damages, judgments, expenses (including attorneys’ fees and costs of experts and costs of appeals) arising out or in connection with any and all of the following: (a) any allegation that any of Your Content infringe, misappropriate or violate any intellectual property right, including, without limitation, any rights of publicity or privacy, (b) any claims for defamation or slander, invasion of privacy or other violation of a person’s rights, (c) any unauthorized activity relating to Your account, (d) any violation of a third party’s contracts, policies or procedures, or (e) any failure of You to have all necessary rights and licenses.
Subject to Section 10, GoAnimate shall indemnify and hold harmless You and Your officers, directors, employees and agents from and against third party out of pocket liabilities, costs, losses, damages, judgments, expenses (including attorneys’ fees and costs of experts and costs of appeals) arising out or in connection with any and all of the following: any third party claim that any of the GoAnimate Platform or the GoAnimate Assets infringe, misappropriate or violate any United States patent, copyright, trademark or trade secret rights of any third parties.
Each party’s obligations to indemnify the other party under this Section shall be conditioned upon the following: (a) The indemnified party shall promptly notify the indemnifying party in writing of the claim; (b) the indemnified party shall grant the indemnifying party sole control of the defense and settlement of the claim; and (c) the indemnified party shall provide the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense or settlement of the claim.
Notwithstanding the foregoing, GoAnimate shall have no liability for any claim of infringement based on (a) the use of the GoAnimate Platform or the GoAnimate Assets other than in accordance with this Agreement, or (b) the combination of the GoAnimate Platform or the GoAnimate Assets with other content, services, software or hardware not provided by GoAnimate, where the combination causes the infringement and not the GoAnimate Platform or the GoAnimate Assets standing alone.
If the GoAnimate Platform or the GoAnimate Assets, or any material portion thereof, is held by a court of competent jurisdiction to infringe, or if GoAnimate believes that the GoAnimate Platform or the GoAnimate Assets may be subject to a claim or held to infringe, GoAnimate shall in its commercially reasonable judgment and at its expense (a) replace or modify the GoAnimate Platform or the GoAnimate Assets so as to be non-infringing, provided that the replacement platform or assets contains substantially similar functionality; or (b) obtain for You the rights to continue using the GoAnimate Platform or the GoAnimate Assets; or (c) if non-infringing platform or assets or the rights to use the GoAnimate Platform or the GoAnimate Assets cannot be obtained upon commercially reasonable terms, terminate this Agreement. Upon any such termination of this Agreement, GoAnimate shall refund the fees paid by You under this Agreement.
This Section sets forth each party’s exclusive remedy, and the indemnifying party’s entire liability, with respect to infringement or misappropriation of intellectual property rights of any kind arising out of this Agreement.
You agree to keep confidential and not use other than in the performance of this Agreement or disclose to a third party any information of GoAnimate that You know or reasonably should know is confidential to GoAnimate.
To the extent You provide GoAnimate with any suggestions, information, ideas, or feedback concerning any of the GoAnimate Assets, GoAnimate Platform, or Services, including but not limited to, a report of any errors which You discover while using the GoAnimate Platform or any related documentation (“Feedback”), such Feedback will be the property of GoAnimate. You agree to assign, and hereby do assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to GoAnimate and agree to assist GoAnimate in perfecting and enforcing these rights.
You may not transfer or assign Your rights under this Agreement, in whole or in part, without the prior written consent of GoAnimate, except that You may, without obtaining the prior written consent of GoAnimate, transfer and assign Your rights under this Agreement in connection with a merger, acquisition or sale of all or substantially all of Your assets to which this Agreement relates (each, a “Permitted M&A Transaction”). Any attempted assignment in violation of the foregoing is void. If You assign this Agreement pursuant to a Permitted M&A Transaction, You agree to promptly inform GoAnimate of the identity and address of the other party involved in the Permitted M&A Transaction. GoAnimate may freely transfer or assign its rights under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
If You purchase a “Transfer Rights” or “Sublicense Rights” license, You may assign or otherwise transfer the right to distribute Your Videos to third parties, subject to You following the procedures and terms outlined by GoAnimate for the transfer. Upon such an assignment or transfer pursuant to a purchase of a “Transfer Rights” license, You no longer retain any rights to use that Video further.
If you have any questions about this Agreement, or if you want to contact GoAnimate for any reason, please direct all correspondence to: GoAnimate, Inc., 204 East 2nd Avenue, Suite 638, San Mateo, CA 94401 USA or send us an email to firstname.lastname@example.org.
Infringement. GoAnimate respects the intellectual property rights of others, and we ask you to do the same. GoAnimate may, in appropriate circumstances, terminate Services and/or access to the GoAnimate Platform for users who infringe the intellectual property rights of others and to block or delete their Videos. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on the GoAnimate Platform, please provide GoAnimate’s designated agent the following information:
GoAnimate’s agent for notice of claims of copyright or trademark infringement on the GoAnimate Platform can be reached as follows:
204 East 2nd Avenue, Suite 638
San Mateo, CA 94401
Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
Submitting a DMCA Counter-Notification. GoAnimate will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to GoAnimate designated agent that includes all of the following information:
Termination of Repeat Infringers. GoAnimate reserves the right, in its sole discretion, to terminate the account or access of any user of our GoAnimate Platform and/or Services who is the subject or repeated DMCA or other infringement notifications and to block and delete their Videos.
The laws of the State of California govern all matters arising out of this Agreement, without regard to conflict of law principles. The United Nations Convention for the International Sale of Goods shall not apply. The federal and state courts located in San Mateo County, California USA will have non-exclusive jurisdiction in respect of disputes arising in connection with this Agreement. If any provision of this Agreement is held invalid, that provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of this Agreement will continue in full force and effect. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. This Agreement is nonexclusive, and each party will be free to enter into other similar agreements or arrangements with other third parties. GoAnimate has no liability for any failure of performance or equipment due to causes beyond its reasonable control, including, but not limited to, the following: acts of God, fire, flood, earthquake, tsunami, storm, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars or acts of terrorism; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet or any telecommunications, hosting or service provider. This Agreement may be modified only by a written agreement that is signed by authorized representatives of both parties and identifies itself as an amendment to this Agreement, provided that GoAnimate may modify this Agreement at any time upon notice to You, with such modification to be effective on the next renewal term of this Agreement as provided under Section 7. No term or provision hereof will be considered waived by a party, and no breach excused, unless the waiver or consent is in writing signed by such party. No consent by a party to, or waiver of, a breach, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different or subsequent breach. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph or in any way affect such section.
GoAnimate, Inc. (“GoAnimate”) has established this Acceptable Use Policy (“Policy”) in order to define certain activities and behaviors that are prohibited. GoAnimate reserves the right to modify this Policy at any time. Changes and modifications to this Policy will be effective when posted to GoAnimate’s site or when GoAnimate provides notifies of the change, whichever is sooner.
You will neither knowingly upload Content to nor knowingly create a Video on the GoAnimate Platform which:
In the community areas of the GoAnimate Platform (as defined in the Terms of Service), You will not knowingly:
You will further refrain from knowingly:
This list of prohibitions provides examples and is not complete or exclusive. GoAnimate reserves the right to (a) terminate Your access to Your account and Your ability to use the GoAnimate Platform and (b) refuse, delete or remove any of Your Content; with or without cause and with or without notice, for any reason or no reason, or for any action that GoAnimate reasonably determines in good faith is inappropriate or disruptive to the Services or the GoAnimate Platform or to any other user of this site, the Services or the GoAnimate Platform (or any combination thereof) or that may expose GoAnimate to liability. GoAnimate may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at GoAnimate’s discretion, GoAnimate will cooperate with law enforcement agencies in any investigation of alleged illegal activity on this site or on the Internet.
GoAnimate has no obligation to monitor, police or remove any of Your Content or other information submitted by You or anyone else.