Kindermusik utilizes multi-platform services that provide users with information, materials, functions and musical and educational content (“Content”). Kindermusik Content can be experienced on a mobile platform (the “App”), a website(s) (the “Website”), and/or other electronic devices, collectively referred to as “Applications”. Applications are used for finding, listening, watching, and playing Content, including all functionality, websites, mobile applications, speakers, content players and all content and software, are known as the “Services.” A User (“User”, “you”, “your”) includes all persons interacting or accessing any Application, including but not limited to the account holder, the person interacting with the Applications , and the audience experiencing the results of a Kindermusik experience. This Statement governs your use of our Applications and Services as the User.
By using Kindermusik Applications or by clicking a box that states that you accept or agree to these terms, you signify your agreement to this Statement. We encourage you to read the Statement, and to use the information it contains to help you make informed decisions. If you do not agree to this Statement, you may not use the Applications.
We have created this Statement to tell you what information the Applications collect, how we use that information, and who we will share that information with, if at all. This Statement does not address the privacy practices of any third parties that we do not own, control, or are affiliated with.
We consider all information obtained by using Applications to be a private communication between Kindermusik, Kindermusik program providers and parents. All communications to Parents and care givers are handled via the parent’s email address. In order to create an account with Kindermusik, parents are required to validate their email address and will then only have visibility to information shared to that specific email address. We will not collect any personal information about adults or children except when specifically, and knowingly provided by a Parent to Kindermusik and/or to Kindermusik program providers. Personal information gathered on our Applications is collected and used only by Kindermusik and Kindermusik program providers.
I. KINDERMUSIK TERMS OF SERVICE
This Statement governs your use of our Services as the User.
- YOUR ACCEPTANCE OF THE TERMS OF SERVICE
By accessing, visiting, or browsing our Services, you accept and agree to this Statement. If you do not agree to this Statement, do not use the Services.
- YOUR PRIVACY
- ACCOUNT RELATED COMMUNICATIONS
Your use of the Services represents to Kindermusik that you consent to receive electronic communications relating to your account. We may communicate:
- over email (to the address you provide when creating your Kindermusik profile)
- through a third-party social content provider that you used to create your account, or
- directly via in-app notifications, push notifications, and alerts.
- MARKETING COMMUNICATIONS
USE OF CONTENT
All information, materials, functions and Content (including Submissions, as defined in Section III, entitled “SUBMISSIONS”) contained on Applications are our copyrighted property or the copyrighted property of our licensors or licensees. All Content provided on the Applications, is protected by United States and international copyright, trade secret or other intellectual property laws and treaties. All Kindermusik trademarks, service marks, trade names, and trade dress are proprietary to us and/or our licensors or licensees.
- PERSONAL USE
Except as we specifically agree in writing, no Content from any Applications may be used, reproduced, transmitted, distributed or otherwise exploited in any way other than as part of the Applications, except that where an Application is configured to enable the download of particular Content, you may download one copy of such Content to a single computer or mobile device for your personal, noncommercial home use only, provided that you (a) keep intact all copyright and other proprietary notices, (b) make no modifications to the Content, and (c) do not use the Content in a manner that suggests an association with any non-Kindermusik products, services or brands. Any business use, “re-mailing” or high-volume or automated use of Content is prohibited. We grant you a limited, non-exclusive, non-transferable, license to access the Content as a user. Except for the foregoing limited license, no right, title or interest shall be transferred to you.
- EDUCATORS AND EDUCATION INSTITUTIONS USE
Educators and education institutions approved and licensed by Kindermusik are allowed to use Kindermusik’s Services, and any Content accessed through our Services, for use in connection with your education activities, classes and events. We grant you a limited, non-exclusive, non-transferable, license to access the Services as a user. Except for the foregoing limited license, no right, title or interest shall be transferred to you.
- GEOGRAPHIC LOCATION RESTRICTIONS
Kindermusik uses your IP address to determine your geographic location. The availability of our Services may be subject to your geographic location, Internet connection, applicable state or national laws, location-specific Content and the devices you use to access our Services. While Kindermusik strives to provide you with fast and reliable experience, there are some instances where your device or Internet connection may cause our Services to be slow or where your geographic location can restrict you from viewing some Content. Kindermusik will not be responsible for issues in quality or outages. You are responsible for all Internet or mobile data access charges. Please check with your Internet and/or mobile service provider for information on possible Internet data usage charges.
- APPLICATION SERVICES
YOUR PROMISES TO KINDERMUSIK
- Copy Restrictions – Kindermusik respects the intellectual property rights of others and expects you to do the same. To the extent permitted by applicable law, unless you obtain express written consent from Kindermusik , you are NOT ALLOWED to:
decompile, disassemble, or electronically transfer our Services to third parties; modify our Services in any way; reverse engineer, or permit others to reverse engineer, our Services; copy the help features, user forums and other documentation associated with our Services; rent, lend, publicly perform, present, broadcast or distribute our Services; make derivative works of our Services; translate our Services into another computer language; use our Services on a device that you do not own or control; permit multiple users to share a single username to our Services; or copy, modify, transfer, or use our Services in a way that is not specifically mentioned by us in this Statement.
- Harmful or Illegal Use – By using the Services, you agree to respect Kindermusik and fellow users. To the extent permitted by applicable law, you are NOT ALLOWED to: use “warez,” including pirated software, ROMs, emulators, phreaking, hacking, phishing, password cracking or cheating, IP spoofing, etc.; use or launch any automated system on our network, including (without limitation) “robots” or “spiders.” attempt to access other networks or accounts that do not belong to you on our network; undergo any act that interferes with the Services of another user or network; circumvent security measures on the network or our Services; engage in illegal activities or engage in activities harmful to the operations of Kindermusik , our Services or other users; use the network or Services to collect or use any personally identifiable information (“PII”) including, without limitation, account names, email addresses, or other user data; engage in terroristic activities; send or store infringing, obscene, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or that violates any third party IP or privacy rights; or provide false data on any of the Services.
- ACCOUNT SECURITY
It is your responsibility, and not Kindermusik’s, to monitor the accuracy and security of your user account. Every user account is protected by a username and password. To reset your password, email email@example.com or click on a “forgot password” link in one of the Applications.
- CONTACTING YOU
Kindermusik will never contact you for sensitive account information outside of the Applications, website or mobile app. You should never open any emails or click any links that appear to be from Kindermusik regarding your account no matter how legitimate these communications may look. Please access and change all information through your Kindermusik account by logging in with your username and password.
USE OF INFORMATION
Information collected by Kindermusik is used internally by our authorized employees for the following purposes:
- To improve our site by determining which areas, features and products are most popular.
- To personalize the site for our customers and their children. For example, we may recommend products or features a family may like based on what they have purchased in the past.
- To send periodic emails, newsletters, updates and surveys. The email addresses our customers provide for registration will only be used to send information and updates pertaining to Kindermusik services and services with which we are affiliated.
We hope that you, our customers, will want to provide information about yourself to Kindermusik because it will make your experience on our sites more valuable. If you are comfortable sharing some basic information, you will receive enhanced services that are impossible to offer to anonymous users. Examples of such services may include e-mail notices of special and discount items, e-newsletters, and special mailings. On occasion, Kindermusik may also share non-personal, summary information regarding our customers with unrelated third parties (for example, we may publicly disclose the aggregate number of registered users of our web site). However, we will not share any personal information about any particular customer with any third parties.
If you do not want to receive e-mail or other mail from us or if you wish to check your information, please e-mail us at firstname.lastname@example.org.
Kindermusik displays retargeted ads to our site prospects across the Internet. We collect Non-Personally Identifiable Information about your visits to our website, and your interaction with our products and services. The anonymous information is collected through the use of a pixel tag, which is industry standard technology used by most major web sites. No Personally Identifiable Information is collected during this process. If you do not want Kindermusik to collect this information, you may opt out of their service. Opting out will not affect your use of our site.
Kindermusik protects your information during transmission by using Secure Sockets Layer (SSL) software which encrypts personal information that you input on our site. The information you input is encrypted before it is transmitted over the Internet. SSL technology is the industry standard for secure online transactions. We reveal only the last four digits of your credit card numbers when confirming an order; however, the entire credit card number is securely transferred to the appropriate credit card company for processing. Kindermusik does not store credit card numbers.
Some services on the Applications permit or require you to create an account to participate or to secure additional benefits. You agree to provide, maintain and update true, accurate, current and complete information about yourself as prompted by our registration processes (the “Registration Data”). You shall not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name, likeness, voice, image or photograph. You also agree to promptly notify us at email@example.com of any unauthorized use of your username, password, other account information, or any other breach of security that you become aware of involving or relating to any Applications. In addition, you agree to exit from your account at the end of each session.
We may suspend or terminate your account and your ability to use any Applications or portion thereof for failure to comply with this Statement or any special terms related to a particular service, for infringing copyright, or for any other reason whatsoever.
- INFORMATION WE COLLECT OR RECEIVE
In the course of operating the Applications, we will collect and/or receive the following types of information. You authorize us to collect and/or receive such information.
- PERSONAL INFORMATION
We only receive or collect information that identifies you personally if you choose to provide such personally identifiable information to us via email, a form, subscribing to our content, or other means. When you sign up to become a user or contact us, you may be required to provide us with personal information about yourself (collectively, the “Personal Information”). We do not collect any Personal Information from you when you use the Applications unless you provide us with the Personal Information voluntarily.
- THIRD-PARTY LOG IN
If you sign in through Facebook or other social media sites, you are authorizing us to collect, store, and use, in accordance with this Statement, any and all information that you agreed that such social media companies would provide to us through their Application Programming Interface (“API”). Such information may include, without limitation, your first and last name, username, profile picture, headline, unique identifier and access token, friends lists, and e-mail address. The Applications may offer social sharing features and other integrated tools (such as the Facebook “Like” button), which let you share actions you take on our Applications with other media, and vice versa. The use of such features enables the sharing of information with your friends or the public, depending on the settings you establish with the entity that provides the social sharing feature. For more information about the purpose and scope of data collection and processing in connection with social sharing features, please visit the privacy policies of the entities that provide these features.
- PAYMENT INFORMATION
If you choose to make a purchase or subscribe to a feature or service of ours that requires a fee, you will be required to provide us with your payment information, including, without limitation, bank account numbers, credit card or debit card numbers, account details, ACH information, and similar data (collectively, “Payment Information”). Such Payment Information will be collected and processed by our third-party payment vendors pursuant to the terms and conditions of their privacy policies and terms of service, and we do not obtain access to any Payment Information in connection with such purchases or subscriptions.
- GEOLOCATIONAL INFORMATION
Certain features and functionalities of the Applications may be based on your location. In order to provide these features and functionalities while you are using your devices, we may, with your express consent, automatically collect geolocational information from your devices or wireless carrier and/or certain third-party service providers (collectively, “Geolocational Information”). Collection of such Geolocational Information occurs only when the Applications are running on your device. You may decline to allow us to collect such Geolocational Information, in which case we will not be able to provide certain features or functionalities to you.
- THIRD-PARTY ANALYTICS
- OTHER INFORMATION
In addition to the Personal Information, Payment Information, Analytic Information and Geolocational Information, we may automatically collect or receive additional information regarding you and your use of the Applications; your interactions with us and our advertising; and information regarding your computer and mobile devices used to access the Applications (collectively, the “Other Information”). Such Other Information may include:
- From You
Additional information about yourself that you voluntarily provide to us, such as your email and your product and service preferences.
- From Your Activity
We may collect or receive information regarding:
- IP address, which may consist of a static or dynamic IP address and will sometimes point to a specific identifiable computer or mobile device;
- browser type and language;
- referring and exit pages and URLs;
- date and time; and
- details regarding your activity on the Applications, such as search queries and other performance and usage data, including access times, pages viewed, and the page you visited before navigating to our Applications.
- From Your Mobile Device
We may collect or receive information regarding:
- type of mobile device;
- operating system and version (e.g., iOS, Android or Windows);
- audio connections (microphone, speaker)
- carrier; and
- network type (Wi-Fi, 3G, 4G, 5G, LTE).
- type of mobile device;
- personalize your experience;
- analyze which portions of the Applications are visited and used most frequently; and
- measure and optimize advertising and promotional effectiveness.
If you do not want us to deploy cookies in the Applications, you can opt out by setting your devices to reject cookies. You can still use the Applications if you choose to disable cookies, although your ability to use some of the features may be affected. Most web browsers are set to accept cookies by default. If you prefer, you can usually choose to set your browser to remove or reject browser cookies.
We may also collect information using web beacons (also known as “tracking pixels”). Web beacons are electronic images that may be used to help deliver cookies, count visits, understand usage and campaign effectiveness and determine whether an email has been opened and acted upon
- HOW INFORMATION IS USED AND SHARED
You authorize us to use the Personal Information, Payment Information, Geolocational Information, and the Other Information (collectively, the “Information”) to:
- provide, maintain and improve our Applications and any related services;
- provide our Services;
- send you technical notices, updates, security alerts and support and administrative messages;
- respond to your comments, questions and requests and provide customer service;
- administer our promotional programs, including marketing email communications;
- solicit your feedback;
- inform you about our products and services;
- communicate with you about products, services, offers, promotions, rewards, and events offered by Kindermusik and provide news and information we think will be of interest to you;
- process transactions;
- monitor and analyze trends, usage and activities in connection with our Applications, personalize and improve the Applications, and provide advertisements, content or features that match user profiles or interests; and
- carry out any other purpose for which the information was collected.
- In an ongoing effort to better understand our users, the Applications, and our products and services, we may analyze certain Information in anonymized and aggregate form to operate, maintain, manage, and improve the Applications and/or such products and services. This aggregate information does not identify you personally. We may share and/or license this aggregate data to our affiliates, agents, business and promotional partners, and other third parties. We may also disclose aggregated user statistics to describe the Applications and these products and services to current and prospective business partners and investors and to other third parties for other lawful purposes.
- We may share some or all of your Information with any of our parent companies, subsidiaries, joint ventures, or other companies under common control with us.
- As we develop our businesses, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, sale of assets, dissolution, or similar event, the Information may be part of the transferred assets.
To the extent permitted by law, we may also disclose the Information:
- when required by law, court order, or other government or law enforcement authority or regulatory agency; or
- in response to a request for information if we believe disclosure is in accordance with any applicable law, regulation or legal process, or as otherwise required by any applicable law, rule or regulation;
- whenever we believe that disclosing such Information is necessary or advisable, for example, to protect the rights, property, or safety of us or others, including you.
- Kindermusik is based in the United States and the information we collect is governed by U.S. law. By accessing or using the Services or otherwise providing information to us, you consent to the processing of information in and to the U.S. and other countries.
- ACCESSING AND MODIFYING INFORMATION AND COMMUNICATION PREFERENCES
If you have provided us any Personal Information, you may access, remove, review, and/or make changes to the same by contacting us as set forth below. In addition, you may manage your receipt of our marketing and non-transactional communications by clicking on the “unsubscribe” link located on the bottom of any of our marketing e-mails. We will use commercially reasonable efforts to process such requests in a timely manner. You should be aware, however, that it is not always possible to completely remove or modify information in our subscription databases. You cannot opt out of receiving transactional e-mails related to the Applications (e.g., requests for support). We may also deliver notifications to your mobile device (e.g., push notifications). You can disable these notifications by deleting the relevant service or by changing the settings on your mobile device.
- HOW WE PROTECT YOUR INFORMATION
We take commercially reasonable steps to protect the Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases nor can we guarantee that the Information you supply will not be intercepted while being transmitted over the Internet. In particular, email sent to us may not be secure, and you should therefore take special care in deciding what information you send to us via email. Taking into account the state of technical development and the nature of processing, the Applications maintain technical and organizational measures to protect against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, or access of Protected Data. “Protected Data” is defined as personal data received from or on behalf of the User in connection with the usage of the Applications.
- IMPORTANT NOTICES TO NON-U.S. RESIDENTS
PROCESSING OF PERSONAL AND PROTECTED DATA
The Applications strive to meet data standards set forth globally, including the General Data Protection Regulation (EU) 2016/679 ( the “GDPR”.) As such, we recognize that users are the Controller of their personal data and Applications are the Processor, with all terms having the respective meanings given to them in the GDPR. By using the Applications, Users agree to these designations and both parties shall at all times comply with all data protection laws in connection with the processing of Protected Data. User shall ensure all requests and all instructions given in respect of Protected Data (including the terms of this policy) shall at all times be in accordance with data protection laws. The Applications shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of this Policy, additional instructions are outlined below:
- The Applications shall only process the Protected Data in accordance with the terms of this Statement (and not otherwise unless alternative processing instructions are agreed to through future updates in writing) except where otherwise required by applicable law (and shall inform the User of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest)
- If the Applications believe that any instruction received by it from the User is likely to infringe the data protection laws, it shall promptly inform the User and be entitled to cease to provide all services until appropriate, amended, non-infringing instructions are agreed upon.
- If we decide to sell, buy, merge or otherwise reorganize our business, this may involve us disclosing your Protected Data to prospective or actual purchasers and their advisers. If such transactions are consummated, they may include, but are not limited to, the sale or transfer of all or substantially all our assets, including but not limited to, our email distribution lists and your personally identifiable information.
- We commit, taking into account the nature of the processing, to assisting the User with any request for exercising the User’s rights under Chapter III of the GDPR (and any similar obligations under applicable data protection laws) in respect to any of the User’s own Protected Data.
- In accordance with data protection laws, taking into account the state of the art, the costs of implementation and the nature, scope, context, and purposes of the processing of Protected Data to be carried out under this Policy, as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons and the risks that are presented by the processing, especially from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to the protected data transmitted, stored, or otherwise processed, the Applications shall implement appropriate technical and organizational security measures appropriate to the risk, including as appropriate those matters mentioned in Articles 32(1)(a) to 32(1)(d) (inclusive) of the GDPR.
- Breach: Kindermusik will notify the User without any undue delay in writing on becoming aware of any unauthorized intrusions into our system that materially affects the User’s Protected Data, including subsequent reports on the actions we took in response.
- We may provide aggregate statistics about customers, sales, usage, traffic patterns, and other related site information to reputable third-party service providers, investors, or in marketing materials. These statistics will not include any personally identifiable information.
- APP STORES; EXTERNAL WEBSITES
If we subsequently transfer or share your Protected Data with a third party service provider for processing as described in this Statement, we remain responsible if these providers process your Protected Data in a manner inconsistent with this Statement, except where we can establish that we were not responsible for the violation.
- CHILDREN’S ONLINE PRIVACY PROTECTION ACT (COPPA)
We adhere to the Children’s Online Privacy Protection Act (COPPA) and will not knowingly collect Personal Information from any child under the age of 13 without express parental consent. Further, the Applications are a family product and not used or marketed solely to children. Kindermusik complies with all applicable COPPA provisions. If a child under the age of 13 has provided us with age identifiable Personal Information, a parent or guardian of that child may contact us and request that such information be deleted from our records.
Note that any Do-Not-Track instructions from User’s browsers or similar mechanisms will not affect our collection of Protected Data that User voluntarily provides to us through such means as browsing our website, signing up for any of our services, or entering personal information on any of our Applications.
- DATA RETENTION AND DELETION
Information we collect may be retained for as long as needed to fulfill legitimate business purposes, or for a period of time specifically required or allowed by applicable regulations or laws. If a User no longer want us to use the User’s information to provide services, User can withdraw consent and/or request that we erase Protected Data by contacting firstname.lastname@example.org. Please note that even after erasure, we may retain some information as necessary for our legitimate business interests, such as fraud detection and prevention, and to comply with our legal obligations. We will respond to all requests to exercise these rights within a reasonable time (and in all cases within 30 days of receiving a request.) You may change your personal information at any time by emailing email@example.com and describing the changes you would like to make.
In this Statement, we use the word “Submissions” to mean text, messages, ideas, concepts, pitches, suggestions, stories, screenplays, treatments, formats, artwork, photographs, drawings, videos, audiovisual works, musical compositions (including lyrics), sound recordings, characterizations, your and/or other persons’ names, likenesses, voices, usernames, profiles, actions, appearances, performances and/or other biographical information or material, and/or other similar materials that you submit, post, upload, embed, display, communicate or otherwise distribute (collectively, “Distribute”) on or through our Applications. There are two types of Submissions: Solicited Submissions and Unsolicited Submissions. “Solicited Submissions” means those Submissions (a) that we expressly request or enable you to provide to us via any feature or activity on Applications for our review or display and possible specifically-defined consideration or compensation (collectively, “Consideration”) (such as prizes or other value in games, sweepstakes, contests and promotions); and (b) that you Distribute on or through any Applications for which you do not seek Consideration (such as in our Guest Services and in Public Forums (as defined below in Section 3, entitled “PUBLIC FORUMS AND COMMUNICATION”)). “Unsolicited Submissions” are any and all Submissions that do not fall within subparagraphs (a) or (b) of this paragraph.
- NOT DISTRIBUTE ANY UNSOLICITED SUBMISSIONS; NO IMPLIED CONTRACT.
Our long-standing company policy does not allow us to accept or consider Unsolicited Submissions so please do not Distribute Unsolicited Submissions on or through any Applications. We want to avoid the possibility of future misunderstandings when projects developed by us or under our direction might seem to others to be similar to their own creative work. We therefore ask that you not Distribute any Unsolicited Submission. In any event, you agree that any Submissions you make is not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of any review, compensation or consideration of any type (other than any stated Consideration).. Except as expressly stated in this Statement, the provisions of this Statement apply equally to Unsolicited Submissions and Solicited Submissions. Accordingly, we, our licensees, distributors, agents, representatives and other authorized users shall be entitled to exploit and disclose all Submissions, and we shall not be liable to you or to any person claiming through you for any exploitation or disclosure of any Submission.
LICENSES AND REPRESENTATIONS
You hereby grant us and our licensees, distributors, agents, representatives and other authorized users, a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify (including removing lyrics and music from any Submission or substituting the lyrics and music in any Submission with music and lyrics selected by us), create derivative works based upon, perform and otherwise exploit such Submissions, in whole or in part, in all content formats and channels now known or hereafter devised (including on Applications, on third party web sites, on our broadcast and cable networks and stations, on our broadband and wireless platforms, products and services, on physical content, and in theatrical release) for any and all purposes including entertainment, news, advertising, promotional, marketing, publicity, trade or commercial purposes, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Submissions License”).
By communicating a Submission, you represent and warrant that the Submission and your communication thereof conform to the Rules of Conduct (set forth below in Section 4 labeled “RULES OF CONDUCT”)) and other requirements of this Statement and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize us to exploit, such Submission in all manners contemplated by this Statement (including the Submissions License). This Statement (including the Submissions License) do not limit any past or future grant of rights, consents, statements, assignments and waivers you may have made or make with respect to Submissions.
To the extent that any Submissions you Distribute on or through our Applications contain original songs or recordings, you hereby represent that you are a member of ASCAP, BMI, SESAC or any other applicable performing rights society and that all musical compositions (including lyrics) and sound recordings contained in such Submissions are available for licensing to us (and our licensees, distributors, agents, representatives and other authorized users) directly from such societies. Notwithstanding the foregoing, regardless of whether you are a member of any performing rights society, you grant the Submissions License with respect to each and every musical composition (including lyrics) and sound recordings contained in such Submissions.
To the extent that we solicit Submissions through features or activities on or through Applications (including games, sweepstakes, contests, promotions and Public Forums (defined below in Section 3, labeled “PUBLIC FORUMS AND COMMUNICATION”)) that require the use of our copyrighted works (in whole or in part), we hereby grant you a non-exclusive license to create a derivative work using our copyrighted works (in whole or in part) as required (but only as required, and only for the purpose of creating your Submissions); provided however, that such license shall be conditioned upon your assignment of all rights in the work you create to us. If such rights are not assigned to us, your license to create derivative works using our copyrighted works (in whole or in part) shall be null and void. You agree to the foregoing grant of rights, consents, statements and assignments whether or not your Submissions are used by us.
You hereby appoint us as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm the grant of rights, consents, statements, assignments and waivers set forth in this Statement.
To the extent any “moral rights,” “ancillary rights,” or similar rights in or to the Submissions exist and are not exclusively owned by us, you agree not to enforce any such rights as to us or our licensees, distributors, agents, representatives and other authorized users, and you shall procure the same statement not to enforce from any others who may possess such rights.
Without limiting the scope of the Submissions License or any future grant of rights, consents, statements, assignments, and waivers you may make with respect to Submissions, you hereby ratify any prior grant of rights, consents, statements, assignments and waivers made by you with respect to Submissions submitted by you to us.
- PUBLIC FORUMS AND COMMUNICATION
“Public Forum” means an area, site or feature offered as part of our Applications that offers the opportunity for users to Distribute Submissions for viewing by one or more Application users, including a chat area, message board, instant messaging, mobile messaging, social community environment, profile page, conversation page, blog, e-mail function (including electronic greeting cards and send-a-friend e-mails). You acknowledge that Public Forums and features offered therein are for public and not private communications, and you have no expectation of privacy with regard to any Submission to a public Forum. We cannot guarantee the security of any information you disclose through any of these Public Forums; you make such disclosures at your own risk. You are and shall remain solely responsible for the Submissions you Distribute on or through any Applications under your username or otherwise by you in any Public Forum and for the consequences of submitting and posting same. We have no duty to monitor any Public Forum. Also, you should be skeptical about information provided by others, and you acknowledge that the use of any Submission posted in any Public Forum is at your own risk. For example, we are not responsible for, and we do not endorse, the opinions, advice or recommendations posted or sent by users in any Public Forum and we specifically disclaim any and all liability in connection therewith. We owe you no obligation, and therefore may refuse, to post, deliver, remove, modify or otherwise use or take any action with respect to Submissions you Distribute.
RULES OF CONDUCT
The following Rules of Conduct apply to the Applications. By using the Applications, you agree that you will not Distribute any Submission that:
- is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity;
- is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them, including a Submission that is, or represents an attempt to engage in, child pornography, stalking, sexual assault, fraud, trafficking in obscene or stolen material, drug dealing and/or drug abuse, harassment, theft, or conspiracy to commit any criminal activity;
- infringes or violates any right of a third party including: (a) copyright, patent, trademark, trade secret or other proprietary or contractual rights; (b) right of privacy (specifically, you must not distribute another person’s personal information of any kind without their express permission) or publicity; or (c) any confidentiality obligation;
- is commercial, business-related or advertises or offers to sell any non-KINDERMUSIK products, services or otherwise (whether or not for profit), or solicits others (including solicitations for contributions or donations);
- contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Applications or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Applications; or
- (a) does not generally pertain to the designated topic or theme of the relevant Public Forum; (b) violates any specific restrictions applicable to a Public Forum, including its age restrictions and procedures; or (c) is antisocial, disruptive, or destructive, including “flaming,” “spamming,” “flooding,” “trolling,” and “griefing” as those terms are commonly understood and used on the Internet.
We cannot and do not assure that other users are or will be complying with the foregoing Rules of Conduct or any other provisions of this Statement, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance.
- COOPERATION; REMOVAL OF SUBMISSIONS
We reserve the right, but disclaim any obligation or responsibility, to (a) refuse to post or communicate or remove any Submission from any Application that violates this Statement (including the Rules of Conduct) and (b) identify any user to third parties, and/or disclose to third parties any Submission or personally identifiable information, when we believe in good faith that such identification or disclosure will either (i) facilitate compliance with laws, including, for example, compliance with a court order or subpoena, or (ii) help to enforce this Statement (including the Rules of Conduct) and/or our contest, sweepstakes, promotions, and game rules, and/or protect the safety or security of any person or property, including any Applications. Moreover, we retain all rights to remove Submissions at any time for any reason or no reason whatsoever.
- CONTENT ACCESSIBLE THROUGH LINKS FROM APPLICATIONS AND SEARCH RESULTS
IV. OTHER TERMS AND CONDITIONS
You are responsible for maintaining the confidentiality of your username(s), password(s), and your account(s), as well as all activities that occur under your account(s). You hereby agree to indemnify, defend, and hold us, our licensors, licensees, distributors, agents, representatives and other authorized users, and each of the foregoing entities’ respective resellers, distributors, service providers and suppliers, and all of the foregoing entities’ respective officers, directors, owners, employees, agents, representatives and assigns (collectively, the “Indemnified Parties”) harmless from and against any and all losses, damages, liabilities and costs (including settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by the Indemnified Parties in connection with any claim arising out of any breach by you of this Statement or claims arising from your use of the Applications and/or your account(s). You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
THE CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO APPLICATIONS OR ANY THIRD-PARTY SITES OR SERVICES LINKED TO FROM ANY APPLICATIONS IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, AVAILABILITY, SECURITY, COMPATABILITY AND NONINFRINGEMENT. WE DO NOT WARRANT THAT ANY CONTENT WILL BE ERROR-FREE, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY APPLICATIONS OR THE SERVERS THAT MAKE SUCH CONTENT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MOREOVER, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY CONTENT. YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM AGAINST US WITH RESPECT TO CONTENT AND ANY CONTENT YOU PROVIDE TO THIRD PARTY SITES (INCLUDING CREDIT CARD AND OTHER PERSONAL INFORMATION).
- Applications may contain the opinions and views of other users. Given the interactive nature of these Applications, we cannot endorse, guarantee, or be responsible for the accuracy, efficacy, or veracity of any content generated by our users.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES INCLUDING LOST PROFITS, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT RESULT FROM (A) THE USE OF, OR THE INABILITY TO USE, ANY OUR APPLICATIONS OR CONTENT, OR (B) THE CONDUCT OR ACTIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF A APPLICATIONS OR ANY OTHER PERSON OR ENTITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, OR $100 (WHICHEVER IS LESS) FOR ACCESSING OR PARTICIPATING IN ANY ACTIVITY RELATED TO ANY APPLICATION. MOREOVER, UNDER NO CIRCUMSTANCES SHALL WE, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL. WE MAY TERMINATE YOUR FURTHER ACCESS TO APPLICATIONS OR CHANGE THE APPLICATIONS OR DELETE CONTENT OR FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON OR NO REASON. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN This Statement APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL KINDERMUSIK , ITS OFFICERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE KINDERMUSIK SERVICES, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER KINDERMUSIK HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (ii) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO KINDERMUSIK SERVICES WILL NOT BE MORE THAN THE AMOUNTS PAID BY YOU TO KINDERMUSIK DURING THE PRIOR THREE MONTHS IN QUESTION.
- You agree that, to the extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with our Services is to request that your user profile be deleted and to stop using the Services.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KINDERMUSIK SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. KINDERMUSIK DOES NOT WARRANT THAT ITS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA. YOU AGREE THAT YOUR USE OF KINDERMUSIK SERVICES IS AT YOUR SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A KINDERMUSIK AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY.
- EXCLUSIONS AND LIMITATIONS
Some states and/or jurisdictions do not allow the exclusion of implied warranties or for liability limitations to be placed on certain types of damages (including incidental or consequential damages). Nothing in this Statement is intended to exclude or limit any condition, warranty, right or liability that may not be lawfully excluded or limited.
- INTERNET AND DATA DELAYS
THE KINDERMUSIK SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS THAT ARE ASSOCIATED WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KINDERMUSIK IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM THESE PROBLEMS.
- ARBITRATION AGREEMENT
ANY DISPUTE ARISING OUT OF THIS STATEMENT SHALL BE RESOLVED AND DETERMINED BY ARBITRATION UNDER THE THEN-CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDINGS SHALL BE HELD IN GUILFORD COUNTY, IN THE STATE OF NORTH CAROLINA, USA. ALL QUESTIONS OF LAW SHALL BE DECIDED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. TO THE EXTENT POSSIBLE, THE PARTIES SHALL UTILIZE THE SIMPLIFIED RULES OF ARBITRATION AS SET FORTH BY THE AMERICAN ARBITRATION ASSOCIATION.
YOU AND KINDERMUSIK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and Kindermusik agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
- GENERAL PROVISIONS
If any provision of this Statement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Statement and shall not affect the validity and enforceability of any remaining provisions. No waiver of any provision of this Statement by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under this Statement shall not constitute a waiver of such right or provision. In this Statement, the word “including” is used illustratively, as if followed by the words “but not limited to. “YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO This Statement OR ANY APPLICATIONS MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED. Supply of goods, services and software through Applications is subject to United States export control and economic sanctions requirements. By acquiring any such items through Applications, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements. Without limiting the foregoing, you may not acquire goods, services or software through Applications if: 1) you are in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan or Syria or if you are on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Commerce Department’s Denied Persons List, Unverified List or Entity List or 2) you intend to supply the acquired goods, services or software to Cuba, Iran, North Korea, Sudan or Syria (or a national or resident of one of these countries) or to a person on the Specially Designated Nationals List, Denied Persons List, Unverified List or Entity List.
Claims of Copyright Infringement.
If you believe your work has been reproduced or distributed in a way that constitutes copyright infringement or are aware of any infringing material available through the Kindermusik Service, please notify us by emailing firstname.lastname@example.org. We have adopted and implemented a policy that provides for the termination, in appropriate circumstances as determined by us in our sole discretion, of users who are infringers of copyright. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement must be sent to Service Provider’s Designated Agent. Notification must be submitted to the following Designated Agent: Service Provider: KINDERMUSIK Title of Agent Designated to Receive Notification of Claimed Infringement: Chief Financial Officer Full Address of Designated Agent to Which Notification Should be Sent: 203 S. Church St., Greensboro, NC 27401 Telephone Number of Designated Agent: (336) 273-3363 Facsimile Number of Designated Agent: (336) 273-4143 E-Mail Address of Designated Agent: email@example.comTo be effective, the notification must be a written communication that includes the following:
- A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
- Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
- A statement that the complaining party has 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; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
We may give you notice that we have removed or disabled access to certain material by means of a general notice on any Applications, electronic mail to a user’s e-mail address in our records, or by written communication sent by first-class mail to your physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
- Your physical or electronic signature;
- Identification 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;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a Federal District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which Kindermusik may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
- TRADEMARKS. Kindermusik is a registered trademark of Kindermusik International, Inc. in the United States and other countries.
- JURISDICTIONAL AND VENUE ISSUES
This Statement will be interpreted in accordance with the laws of the State of North Carolina, including all matters of construction, validity, performance, and enforcement, without giving effect to any principles of conflict of laws. You agree that any action at law or in equity arising out of or relating to this Statement or the Applications shall be filed, and that venue properly lies, only in state or federal courts located in Greensboro, North Carolina, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. We make no representation that Content on any Applications is appropriate or available for use in any particular location. Those who choose to access Applications do so on their own initiative and are responsible for compliance with all applicable laws including any applicable local laws.
At any time, we may amend this Statement (including by modification, deletion and/or addition of any portion thereof). If we make a material amendment to this Statement, we will notify you of such amendment by sending you an e-mail at the last e-mail address that you provided us, and/or by posting notice of such amendment on the Web sites covered by this Statement. Any such amendment to this Statement will be effective thirty (30) calendar days following either our dispatch of an e-mail notice to you or our posting of notice of the changes on the Web Sites. Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of any amendment described in the notice.
If we suspect that you are violating any of the conditions described in this Statement , or if you are found to be using our Services improperly, we reserve the power to terminate your account without notice and without compensating you.