BrainPOP

User Agreement

When you accept this Agreement by checking the box and click on Complete Purchase in the store, this Agreement will be a binding legal agreement between you and BrainPOP., BrainPOP is the business name of FWD Media, Inc., a Delaware corporation. We will refer to the corporation throughout this Agreement as "BrainPOP", "we" or "us". This Agreement sets forth the terms and conditions governing your use of our "websites" (BrainPOP at http://www.brainpop.com, BrainPOP Jr. at http://www.brainpopjr.com, and BrainPOP Español at http://esp.brainpop.com as a subscriber. In order to subscribe to our websites, you must accept the Agreement. Please read this Agreement carefully. By using our websites, you also agree to abide by our Terms of Use and Privacy Policy applicable to all visitors to our websites (whether subscribers or not) and any modifications thereto. To subscribe to our websites, you must be 18 years of age or older or have your parents subscribe for you.

Becoming a subscriber requires you to register an account. You agree to provide the accurate and current information requested during registration and to promptly update your information as necessary to keep it accurate and complete at all times. You agree to keep confidential all personal identifiers resulting from registering with our websites (such as passwords and user names) and to be held responsible for all activities under your account. Further, you agree to notify us of any unauthorized use of your password or account. You acknowledge that our websites are restricted to subscribers who supply us with valid billing information.

If you subscribe to our websites, you agree to pay all subscription fees and all charges to your account, including applicable taxes, in accordance with the payment terms in effect at the time the fee or charge becomes payable or under applicable law. We may modify the pricing of subscriptions and the available subscription plans at any time and at our discretion. Periodic subscriptions will automatically renew for additional terms, at the pricing level at time of renewal, unless you cancel your subscription. If you cancel your subscription during its validity period, we may choose whether to award you a partial refund of the unused period or to grant you access to our websites until the end of the subscription period.

1. Content.

The content offered through our websites (the “Content”) is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All title and copyrights in and to the Content are the property of BrainPOP. The Content is licensed to you for the duration of your subscription to our websites, subject to the terms of this Agreement. Your right to use the Content is limited, personal, non-transferable, and non-exclusive. You may not copy, modify, rent, lease, or sublicense the Content, create derivative works based on the Content, or otherwise commercially exploit the Content. You may use your subscription on any computer, but you must use a valid subscriber account to access our websites.

In connection with the use of our websites, you shall abide by all applicable federal, state or local laws, including those pertaining to such areas as libel, slander, defamation, trade libel, product disparagement, harassment, child protection, invasion of privacy, tort, obscenity, indecency, and copyright or trademark infringement. You acknowledge sole liability for violations of any such laws or of this Agreement and release BrainPOP from any claims or liabilities with respect to the same.

Except as expressly provided, nothing herein or within our websites shall be construed as conferring any intellectual property rights, whether by implication, waiver, or otherwise. Without limiting the generality of the foregoing, the rights granted to you herein are expressly made subject to full and strict compliance by you with any and all of the provisions of this Agreement and the Terms of Use.

2. Warnings.

We make no representation that our websites are free of viruses, worms or other malicious or rogue software (“Rogue Programming”). Any downloading of Content or other materials or any other use of our websites is at your own risk, and you are advised to take adequate precautions to minimize any loss to you caused by any Rogue Programming, including use of such measures as anti-virus programs and proper backup of files.

You are cautioned that any online communications may not be fully confidential and secure. In addition, you should be aware that federal postal regulations do not protect electronic mail. You should be aware that some administrative personnel at BrainPOP may, in the course of their regular duties, have access to communications for technical or operational purposes. We may also disclose any communications to the extent permitted or required by law or when required in order to resolve disputes between you and us.

3. No Warranties; Limitations of Liability and Indemnities.

OUR WEBSITES AND THE CONTENT ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NONINFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER BRAINPOP NOR ITS EMPLOYEES, MANAGERS, OWNERS, LICENSORS OR ANY OF ITS MEMBERS OR AFFILIATES WARRANT THAT ANY INFORMATION IS COMPLETE OR ACCURATE, THAT OUR WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ANY INFORMATION IS FREE OF ROGUE PROGRAMMING.

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BRAINPOP, ITS EMPLOYEES, MANAGERS, OWNERS, LICENSORS, MEMBERS OR AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM THE USE OR INABILITY TO USE OUR WEBSITES, INCLUDING WITHOUT LIMITATION USE OF OR RELIANCE ON INFORMATION AVAILABLE ON OUR WEBSITES, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE.

YOU HEREBY RELEASE AND WAIVE ANY AND ALL CLAIMS AND/OR LIABILITY AGAINST BRAINPOP, ITS EMPLOYEES, MANAGERS, OWNERS, LICENSORS, MEMBER AND AFFILIATES ARISING FROM OR IN CONNECTION WITH YOUR USE OF OUR WEBSITES AND/OR THE CONTENT. YOU ALSO AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS, BRAINPOP, ITS EMPLOYEES, MANAGERS, OWNERS, LICENSORS, MEMBER AND AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS OR LIABILITY, INCLUDING COSTS AND ATTORNEYS FEES, ARISING FROM OR IN CONNECTION WITH YOUR USE OR MISUSEOF OUR WEBSITES, UNAUTHORIZED USE OF YOUR ACCOUNT, PASSWORDS OR USER NAMES, OR YOUR FAILURE TO ABIDE BY APPLICABLE LAW.

4. Suspension or Termination of Service or Your Account.

You acknowledge and agree that we reserve the right, at any time, to modify or discontinue our websites, or any part of them, without notice to you, and that we will not be responsible or liable, directly or indirectly, to you or any other person for any loss or damage of any kind incurred as a result of, or in connection with, any such modifications or discontinuance.

You further acknowledge and agree that we, in our sole and absolute discretion, may, without notice to you, suspend or terminate your account or your use of, or access to, our websites and the Content, and remove and discard any information or content related to your use of our websites, for any reason, including if we believe that you have violated this Agreement or any of the Terms of Use. You further agree that we shall not be liable to you or to any other person as a result of any such suspension or termination. If you are dissatisfied with our websites or with any terms, conditions, rules, policies, guidelines, or practices of BrainPOP in operating our websites, your sole and exclusive remedy is to discontinue using our websites, however (i) for annual subscribers, if you send a notice to us at info@brainpop.com within 30 days of the date that you first subscribed, we will refund to you 70% of your subscription fee; and (ii) for monthly subscribers, if you cancel during the first year, we will charge you a cancellation fee of $35. Any amounts payable for our websites shall be payable in advance, and we shall not be required to refund to you any amounts prepaid.

BrainPOP’s rights and defenses hereunder and under the Terms of Use shall survive the termination of your account and this Agreement.

5. BrainPOP’s Intellectual Property.

BrainPOP and BrainPOP.com are trademarks of FWD Media, Inc. All product, brand and company names and logos used on our websites are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on our websites (unless you first receive our express written consent or the consent of the owner of the mark, as appropriate), is strictly prohibited.

BrainPOP trademarks, the BrainPOP logo, and any other product or service name or slogan contained in our websites and the Content are trademarks, trade dress and service marks of BrainPOP and its suppliers or licensors and may not be copied, imitated or used, in whole or in part, without the prior written consent of BrainPOP or the applicable trademark holder. You may not use metatags or any other "hidden text" utilizing "BrainPOP" or any other name, trademark, service mark or product or service name of BrainPOP without our prior written permission. In addition, the look and feel of our websites, including all page headers, custom graphics, button icons and scripts, are the service marks, trademarks and/or trade dresses of BrainPOP and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, service marks, product names and company names or logos mentioned in our websites are the property of their respective owners. Our reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply our endorsement, sponsorship or recommendation thereof.

All information and Content contained on, or made available over, our websites is owned by or licensed to BrainPOP, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. BrainPOP reserves all rights to the Content.

6. License and Site Access

BrainPOP grants you a limited license to access and make personal use of our websites and not to download (other than necessary for page viewing) or modify it, or any portion of it, except with our express written consent. This license does not include any resale or commercial use of our websites or the Content; any collection and use of any product listings, descriptions, or prices; any derivative use of our websites and the Content; any downloading or copying of account information for the benefit of another; or any use of data mining, spiders, robots, or similar data gathering and extraction tools. Our websites or any portion of them may not be reproduced, distributed, duplicated, republished copied, sold, resold or otherwise exploited without our express written consent. You may not frame or utilize framing techniques or caches to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of BrainPOP without express written consent. Any unauthorized use of our websites automatically terminates your permission or license to use our Site.

You agree that you will not send us any material that is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise objectionable. You must not send to us any malicious software (such as viruses, Trojan horses and the like) or other rogue programming, political messages, solicitations, mass mailings, or any form of "spam." You agree not to attempt illegal or unauthorized entry into our computer system, to attempt to access sensitive system information, to access or track the information of other users, or to use our websites for any other illegal or unauthorized activity. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to your identity.

BrainPOP attempts to provide accurate descriptions of the Content. However, we do not warrant that product descriptions or other parts of the Content are accurate, complete, reliable, current, or error-free. If Content is materially misrepresented, your sole remedy is to cease use of that Content and to notify us of the purported error.

Our websites may include links to other Internet sites as a convenience to you. We do not monitor or endorse any such sites or the information, products or services contained on or accessible through such sites. If you access such sites, you do so solely at your own risk.

7. Miscellaneous Provisions.

This Agreement and the Terms of Use supersede any prior agreements, understandings and representations between you and us relating to the subject matter of this Agreement and the Terms of Use. Our failure to insist upon or enforce strict performance of any right or provision of this Agreement and/or the Terms of Use shall not constitute or be construed as a waiver of any right or provision. If any of the provisions (or parts thereof) contained in this Agreement and/or the Terms of Use are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) contained herein, and the affected provisions will be amended to the form most similar to the original which is in compliance with the law. The Terms of Use and this Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA and the federal laws of the United States of America applicable thereto. You agree that any dispute in connection with our websites and/or Content shall be the sole and exclusive jurisdiction of the Supreme Court of the State of New York or the U.S. Federal District Court located in New York County, New York, and you irrevocably submit to the jurisdiction of such courts and agree to accept service of process by electronic mail.

In connection with our websites, you may receive hardware or software devices as part of a promotion or other marketing event (each a "Promotional Item"). A Promotional Item provided to you is provided as a courtesy only in connection with your subscription to our websites. Any Promotional Item is provided on an "as is" and "as available" basis. Any Promotional Item is for personal use only and cannot be resold. Under no circumstances will we, our employees, managers, members, affiliates or third-party suppliers, be responsible or liable for any damages whatsoever, including direct, indirect, special or consequential damages, that may arise out of or in connection with (i) the provision of a Promotional Item, (ii) the use of, inability to use or performance of a Promotional Item, or (iii) the design, manufacture, operation or malfunction of the Promotional Item. Use of a Promotional Item is subject to the manufacturer requirements, including minimum systems requirements. Additional hardware and/or software may be required in order to use a Promotional Item. Customer service and support is not provided for Promotional Items.

This Agreement is subject to change from time to time, and your continued use of our websites is conditioned upon your acceptance of any modifications hereto.

You may email us at info@brainpop.com. You may also send mail us at BrainPOP LLC, 71 W 23rd St., 17th Fl., New York, NY 10010.