IMPORTANT! If you are not of legal age to form a binding contract (in many places, this is 18 years old), you must get your parent or legal guardian to read and accept this Agreement on your behalf, before you use Edbox or provide any information to us. Please review this Agreement with your parent or guardian so that you both understand how Edbox works and what restrictions apply to your use of our websites and services.
Welcome to Edbox platform ("Platform"), which is part of a service offered by Elernity Limited ("Elernity") that allows users to develop games, connect with other users to play games, and use content created by you and other users (the "Service").
Together with you and the rest of our community, we want to create a learning experience that is both fun and entertaining. To accomplish this, we set out below the terms and conditions ("Terms") that you, a user, and Elernity ("we," "our," or "us") must follow, and is a legally binding agreement between you and us.
In particular, we want to point out that by accepting these Terms, you and we are agreeing to arbitrate any dispute between us, and you are giving up your right to go to court either individually (except for matters that may be taken to small claims court) or as part of a class action, except as otherwise provided by the European General Data Protection Regulation. See the Dispute Resolution and Arbitration section below for details.
We also want to make sure that you know that by accepting these Terms and for purposes of facilitating the Service, you are agreeing to grant us a non-exclusive license to use, online and offline, whatever you create or in the past have created while using the Service. This is covered in the User Created Content ("UCC") section below.
COPPA in the U.S. requires that online service providers obtain parental consent before they collect personally identifiable information online from "children who are under the age of 13."
Children under the age of 13 may come to the service either on their own or through a school. As such, we only collect personal information through the Services from a child under 13 where we either have obtained parental consent (1) directly from the parent, or (2) if the child is a student and the service is being made available for the benefit of the learning environment, from the student's school, district, and/or teacher (via the terms described in the following paragraph) based on the school, district, and/or teacher obtaining parental consent for that child to use the Services and disclose personal information to us. If you are under the age of 13, you are not permitted to use this Service unless one of the 2 parental consent options have been met. If we learn we have collected personal information from a child under 13 without parental consent, or if we learn a child under 13 has provided us personal information beyond what we request from him or her, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information in violation of this paragraph, please contact us at firstname.lastname@example.org.
A."Content Services" means all types of content, including games (and all characters, assets, names and other items in the games), avatars and other characters, digital clothing and other digital assets for avatars and other characters, models (2D, 3D or otherwise), artwork, reviews, text, software, scripts, graphics, photos, images, sounds, music, videos, audiovisual combinations, interactive features, names, usernames, logos, Developer Services (as defined below), and other materials, works, items or content (standalone or in combination).
B."Developers" are users that create Developer Game Services, Developer Game Item Services and/or Developer Avatar Item Services.
C."Developer Services" mean the following Content Services created by Developers: (a) games/experiences ("Developer Game Services"), (b) anything that is made available (through the Service) for consideration to other users in and for Developer Game Services, such as game passes or digital content, items or abilities for use in or for Developer Game Services ("Developer Game Item Services"), and (c) digital items for avatars ("Developer Avatar Item Services").
D."Dispute" means any dispute, action, controversy or claim arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal or equitable basis, and regardless of whether a claim arises during or after the termination of these Terms.
E."Provide" or "Publish" means to create, modify, or generate through the Service, or upload, post, publish, or otherwise provide to, for, or through us, someone, or something on behalf of us or the Service.
F."UCC" means the following that you control, have the ability to license, have ownership of, will Provide (as defined below), or have Provided: (a) Content Services (as defined below) and (b) any modifications, changes, or derivative works by you or that you otherwise own or control of any of those types of data or works that are on, in, or used with the Service.
B.Changes to Terms. We reserve the right to update or modify the Terms at any time without prior notice, and such changes will be effective immediately upon being posted through the Service; however, material changes to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from the posting of such change. Your use of the Service following any such change constitutes your agreement to be bound by the modified Terms. These Terms will identify the date of last update. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the Dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
C.Additional Policies. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to the Service, and all such additional documents are incorporated by this reference into, and made a part of, these Terms.
A.Use. Some of the things you can do through the Service are listed directly below, although what you can actually do in the list below will depend on your age, the type of account you sign up to, whether you create UCC and allow the use by others of that UCC, and other factors. These Terms apply to all users of the Service no matter what you do.
1.Create/Develop/Modify/Contribute. Create, develop, modify and contribute Content Services, which may be available to some or all of the users of the Service. The Service is a social platform, which hosts games and other content created by users to be played and used by other users. The Service includes tools and interfaces that users can use to create, play, interact and socialize. Developers create Developer Services and Publish the Developer Services. Other users on the Service can interact, use and in some cases acquire the Developer Services. Keep in mind that Developers are users like you. So, we welcome you to become a Developer. Also keep in mind that whether you are a Developer or other type of user, you are governed by these Terms. Also, we reserve the right, but shall have no obligation, to pre-screen, refuse to accept, post, display or transmit your Content Services through the Service in whole or in part at any time for any reason or no reason, with or without notice and with no liability.
2.Play/Interact. Play, interact, see, view and use (and in certain cases, manipulate and change) certain portions of the UCC on the Platform.
3.Imagine/Socialize. Imagine, socialize, chat, play, create, interact and relate with others in many ways.
B.Changes or Discontinuance of the Service. We reserve the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service.
C.Third-Party Services. We may provide tools through the Service that enable you to export information to third-party services, including through features that allow you to link your account with an account on a third-party service, such as Edmodo, Twitter or Facebook, or through our implementation of third-party buttons (such as "like" or "share" buttons). Third-party services are not under our control, and we are not responsible for any third-party service's use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content. If you click on a linked website, we are not responsible for such website's use of your data. You agree that your use of the Service may incur third-party fees, such as fees charged by your carrier for data usage, and may be subject to third-party terms, such as your carrier's terms of service, and you agree to pay all such fees and abide by all such terms. By using the Service, you expressly relieve us from any and all liability arising from your use of any third-party website or third-party services.
A.Your Account. To access some of the Service features on the Platform, you will need to create an account ("Account"). When you register for an Account or update the information, you agree to provide us with your correct age and information that you will keep up-to-date at all times (providing inaccurate information is a violation of these Terms). You may never allow anyone else to use your Account (except your parents or legal guardian). If you have reason to believe that your Account is no longer secure, then you must immediately notify us at https://edbox.101.com/about/contact. If anyone asks for your password or personal information (such as your name, address or phone number), please immediately report the user and situation. You agree that we may take steps to verify the accuracy of information you provide, including contact information for a parent or guardian. Before a user under the age of 13 can set up an account, we will obtain verifiable parental consent. Circumventing our ability to obtain verifiable parental consent is a direct violation of these Terms.
B.Suspension/Termination. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. In addition, we may, in our sole discretion, (a) suspend or terminate your Account and/or your access to the Service, or (b) remove any of your Content Services, at any time, without notice for any reason. We will have no liability whatsoever as a result of any suspension or termination of your access to or use of the Service. If you are under 13, your parent/guardian may request the termination of your Account by contacting customer service at https://edbox.101.com/about/contact.
5.Virtual Currency. We, in our sole discretion may offer a virtual currency on the Service.
A.License to Use. We, in our sole discretion, may offer eligible users of the Service the ability to acquire a limited license to use our virtual currency. If we offer you the ability to acquire a limited license to use our virtual currency, we hereby grant you a non-exclusive, revocable, personal, limited, non-transferable (except as specifically set out in Section 5B(5) below) right and license to use our virtual currency only for your personal, entertainment use exclusively in connection with the Service as permitted by us, subject to these Terms.
B.Ways to Acquire Our Virtual Currency. Eligible users of the Service may acquire a limited license to use our virtual currency: (1) by acquiring our virtual currency from us; (2) by acquiring certain memberships from us that provide a specified amount of our virtual currency; (3) by referring other users to the Service that acquire our virtual currency or a membership; (4) by creating certain UCC for the Service; (5) by transferring certain Content Services to other users in exchange for our virtual currency; or (6) through such other methods as we may offer from time to time. We will credit your Account for any virtual currency acquired by you. Your license to use our virtual currency will terminate upon termination of these Terms or your Account and as otherwise provided herein, except as otherwise required by applicable law.
C.Virtual Currency Not Redeemable or Exchangeable. Our virtual currency does not: (1) have an equivalent value in real currency; (2) act as a substitute for real currency; or (3) earn interest. Our virtual currency is not redeemable or exchangeable for real currency, monetary value, or convertible virtual currency from us or any other third party, except as expressly provided in these Terms or otherwise required by applicable law.
D.Final Payment. All payments for our virtual currency are final and not refundable or exchangeable, except as required by applicable law. You may not transfer, assign, sell, gift, exchange, trade, convert, lease, sublicense, rent, or distribute our virtual currency except through the Service and as expressly permitted by us. Any disposition or attempted disposition of our virtual currency in violation of these Terms will be void and will result in immediate termination of your Account and your license to use our virtual currency. We do not recognize or condone any third-party services that may be used to sell, exchange, transfer, or otherwise dispose of our virtual currency. We do not assume any responsibility for, and will not support, such transactions.
E.No Obligation. Neither us nor any third party has any obligation to exchange our virtual currency for anything of value, including, but not limited to, real currency, except as expressly provided in these Terms or otherwise required by applicable law. We, in our sole discretion, may impose limits on our virtual currency, including, but not limited to, the amount that may be acquired, earned, or redeemed.
F.Valuation of Our Virtual Currency. You acknowledge and agree that we may engage in actions that may impact the perceived value or acquired price of our virtual currency at any time, except as prohibited by applicable law.
G.Reservation of Rights. Except as otherwise prohibited by applicable law and except for the limited licenses granted under these Terms, we reserve and retain all rights, title, and interest in and to our virtual currency.
H.Absolute Right. We, in our sole discretion, have the absolute right to manage, modify, suspend, revoke, and terminate your license to use our virtual currency without notice, refund, compensation, or liability to you, except as otherwise prohibited by applicable law. We make no guarantee as to the nature, quality, or value of our virtual currency or the availability or supply thereof.
A.Making Payments through the Service.
1.Overview. Through the Service, you may be able to make payments for (as the "Payor") two types of Content Services: Developer Services or "Edbox Services," which is anything you can make payments for that is not a Developer Service. When you make payments for Developer Services, payment will be collected through the Service on behalf of the Developer, you will be acquiring the Developer Services from the Developer, and the terms of such transaction shall be between you and the Developer. When you make payments for Edbox Services, you will be making payments for those items directly to us. Unless otherwise expressly stated in these Terms or unless otherwise agreed to, all payments are final and non-refundable, except as required by applicable law. You represent and warrant that you have the authority and right to use the payment method selected by you and that such payment method has sufficient credit or funds available to complete your payment. If you believe someone has gained unauthorized access to your Account or used your Account without your permission, you must notify us within 45 days of the charge date by sending an e-mail to email@example.com. We reserve the right to close any account with unauthorized charges.
2.Memberships. If the Service allows for memberships, by purchasing a membership that renews, you acknowledge and agree that your membership will automatically renew and, unless you cancel your membership you hereby authorize us to charge the payment method associated with your Account for your membership renewal. We will notify you by email prior to each renewal of your membership that has a duration of 6 months or more. (We may also notify you prior to each renewal of your membership that has a shorter duration). The period of the membership renewal and the cost of the membership renewal will be the same as your current membership period unless otherwise disclosed to you when you sign up for the membership. You can cancel your membership at any time by sending a cancellation notice to firstname.lastname@example.org. If you cancel your membership, you receive the remainder of your period of membership that you've already paid for.
3.No Refunds. As discussed elsewhere in these Terms, there may be situations where games, avatar items, or other content may be removed from the Service (due to violations of these Terms or for other reasons). We will have no liability for any losses you may incur as a result and will not be liable to refund any virtual currency or other funds you spent in or for that game or content.
B.Receiving Payments through the Service
1.Overview. The Service may allow Developers to receive payments for Developer Game Item Services and Developer Avatar Item Services through the Service. If the Service allows you to receive payments, you acknowledge that we will, solely, on your behalf and not on our own behalf, display and host Developer Game Services, Developer Game Item Services and Avatar Item Services to be played and experienced by users through the Service. Anything that a Developer receives payments for through the Service is a transaction between the Developer and the Payor, with us acting solely as a facilitator by providing the Developer and Payor with the Service. We take a commission on those payments for providing the Service, certain parts of customer service, moderation, the convenience for users to be able to prepay for virtual currency and use our virtual currency on your payments, and other services. The commission may be changed by us at any time for any reason. For a consistent user experience and as a convenience to all, we process all payments through the Service.
2.Developer Game Services and Developer Game Item Services. Developers are responsible for all issues relating to their Developer Services and Developer Game Item Services, including dealing with all complaints and issues from Payors in a timely and professional manner.
3.Return of Virtual Currency to a Payor. If we need to return virtual currency to a Payor for items for which you received a payment, we reserve the right to reduce accordingly any future payment to you.
C.Disputes Between Developer and Payors
1.Disputes Regarding Developer Game Services and Developer Game Item Services. If you have any problems or concerns with Developer Game Services or Developer Game Item Services, you should contact the Developer of the Developer Game Services or Developer Game Item Services to resolve the issue. Although we are not responsible for any such issues, we have an interest in making sure that we keep the Service a good experience for all involved. As such, we reserve the right, in our sole discretion, to intervene in and assist in attempting to resolve issues between Developers and Payors. To escalate any such problem to us, please first make a good faith attempt to work out a solution with the Developer. After such a good faith attempt, you may escalate to our Customer Service department by sending a communication to https://edbox.101.com/about/contact. If we choose to take action, Developers and Payors agree that our decision (which may include deducting virtual currency from the Developer and crediting the account of the Payor) is final and Developers and Payors shall abide by that decision. You agree to work with us in a timely manner to resolve all such issues, and failure to do so is considered a violation of these Terms.
2.Developer Avatar Item Services. If you have any problems or concerns with Developer Avatar Item Services, you should contact us. Although the Developer Avatar Item Services are not actually our services, all Avatar-related services are distributed to the Payor through the catalog provided by the Service. Both Developer and Payors agree to follow our determination with respect to any problems or issues regarding Developer Avatar Item Services.
3.Edbox Services. Disputes regarding Edbox Services are handled according to Section 12.
1.Ownership of our Intellectual Property. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Intellectual Property" or "IP") are protected by law. All IP contained in the Service is our property or our users' or third-party licensors' property. The IP includes UCC that has been licensed to us by our users under Section 7(B)(3) below. Except as expressly authorized by us in these Terms, you may not make use of any IP contained in the Service unless you get separate permission from the owner. We reserve all rights to the IP not granted expressly in these Terms.
2.License. Subject to your ongoing compliance with these Terms, we grant you a non-exclusive, personal, limited, revocable, non-transferable license to use the Service on compatible devices that you own or control for your personal, entertainment use. This includes the right to download and use software that we make available for download as part of the Service, in object code form only. This software is licensed, not sold, to you for use only pursuant to the Terms and only in connection with your use of the Service.
3.Music Incorporated in Your UCC.
b.Edbox Licensed Music. Elernity may, in its sole discretion, choose to make sound recordings and the musical works embodied therein ("Licensed Music") available for you to use in your UCC. Your use of the Edbox Licensed Music is subject to the following license, terms and conditions.
i.License. We grant you a non-exclusive, personal, limited, revocable at any time, non-transferable license solely to do the following: (i) synchronize Licensed Music into UCC ("UCC with Licensed Music"), solely using the Service and solely during the period of time that such Licensed Music is made available by Elernity; and (ii) play, listen and interact with UCC with Licensed Music solely on the Service.
ii.Terms and Conditions.
a)250 Track Limit. You may not use Licensed Music to create a streaming service or music library within UCC with Licensed Music nor may you charge users to listen to a specific track of the Licensed Music. You have the right to place, play, and have played up to 250 discrete tracks of Licensed Music, or portions thereof, at any one time into a single UCC with Licensed Music. You can replace existing tracks of Licensed Music into a single UCC with new tracks at any time, provided that there are no more than 250 Licensed Music tracks in such UCC at any one time.
b)Modifications/Derivative Works. You may modify the Licensed Music to synchronize into the UCC. Such modifications may include, but not be limited to, editing of the Licensed Music or using a portion of a track of Licensed Music or sampling of portions of the Licensed Music. All modifications to the Licensed Music are considered derivative works and shall be included in the definition of Licensed Music. All rights to such derivative works are retained by Elernity and its licensors.
c)Use only on the Services. You shall not export or download and shall not provide a means for anyone to export or download the Licensed Music to a destination outside of the Services.
d)Attribution. You are not required to, but may choose to provide, attribution for Licensed Music used by you in any UCC. For example, if we identify the owner of Licensed Music as APM Music, you may message that the Licensed Music is provided "Courtesy of APM Music".
e)Revocation of Rights to Licensed Music. As Licensed Music is licensed by us from third parties, your rights to Licensed Music is revocable at any time and for any or no reason in our sole discretion and without any liability to you. If we revoke your right to use Licensed Music, you will have to remove such Licensed Music from your UCC. We will try to provide you with advance notice before revoking any rights to Licensed Music, but we reserve the right to do so with no advance notice. We reserve the right to remove any UCC with Licensed Music from the Service at any time in our sole discretion and without any liability to you.
4.Restrictions. You may not rent, lease, lend, sell, redistribute or sublicense any portion of the Service, including software. You may not copy, distribute, publicly perform, publicly display, decompile, reverse engineer, disassemble, attempt to derive the source code, modify, or create derivative works of the Service or any downloaded or underlying software or technology (except as and only to the extent any foregoing restriction is prohibited by applicable law), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service, including any protections for Content Services.
5.Breach. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights.
6.Updates. These Terms will govern any updates provided to you by us that replace and/or supplement any part of the Service, unless such update is accompanied by a separate license, in which case the terms of that license will govern.
B.User Created Content ("UCC") - Users, Developers and Groups
1.Generally. We will provide an opportunity for you to Provide UCC through the Service.
2.Groups. Through the Service, you may have the opportunity to join a Group (as defined below).
i.The individual or entity controlling or owning the email address for a Group will be deemed the owner of the Group for all purposes (the "Owner"). The Owner may choose (in that person's sole discretion) to make a different person the new Owner (in such case the new owner shall be considered the Owner). If the Owner's account is terminated pursuant to these Terms, Elernity may, in its sole business judgment, determine who is the rightful person to be made the new Owner of the Group (and that user shall be considered the Owner); provided, however, that nothing will obligate Elernity to designate a new Owner if Elernity in its sole business judgment determines to terminate a Group.
ii.By participating in a Group, you hereby grant the Owner of the Group, as such Owner may change over time, the sole and exclusive authority to act on your behalf to authorize Elernity to use any UCC created by the Group as set forth in these Terms or pursuant to any other agreement entered into between the Owner and Elernity.
iii.An Owner and the members of a Group may separately agree upon how the Owner may exercise the authority granted to such Owner in these Terms or how the members of a Group may allocate amongst themselves any payments that may be made to the Owner for any activities undertaken or UCC created by the Group, but in any event Elernity will make any payments due for any activities undertaken or UCC created by the Group solely to the Owner of the Group. You hereby waive any claims that you may have against Elernity for any payments made to an Owner by Elernity, and you agree to seek recovery of any payments due you solely from the Owner of any Group of which you are a member. Except as may be provided at law, any duty of accounting between an Owner of a Group and members of such Group will arise solely pursuant to a written agreement among the Owner of a Group and its members, and Elernity will not be bound by any agreement among the Owner and members. Any reference to "you" in this Section 7 shall, in the case of a Group, only mean the Owner. A "Group" exists where users or Developers have joined together to register as a group, via a single email address, on the Service in order to release a game or content via the Service. For corporate Accounts, the company (or other legal entity) named on the Account is considered to be a Group.
3.Ownership of UCC and License Grant to Elernity. For any UCC that you have ever Provided or that you will Provide (whether created solely by you or together with others) (a) between you and us or you and users, you retain all copyrights that you may hold in the UCC, and (b) in consideration of using the Service and the potential to earn virtual currency as discussed in Section 5 above, you grant us a perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license (with the right to sublicense to any person or entity, whether a user of the Service or not) to host, store, transfer, publicly display, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), reproduce (including in timed synchronization to visual images), modify, create derivative works of, distribute, and use in any way the UCC that you Provide, in whole or in part, including modifications and derivative works, in any media or formats (tangible or intangible) and through any media, items or channels (online, offline, or others, now known or hereafter developed), including for publicity and marketing purposes (except that you are not granting us any license to make new or derivative video games using your UCC). Kindly note that if you Provide UCC (such as items to or for the Service), you do not have the right to remove or modify that UCC (unless Elernity provides tools for you to remove or modify that specific type of UCC, or unless otherwise required by law). When using the Service, you may be prompted to grant other Platform users the right to use your UCC. If you agree to grant this right, other users may use your UCC to create their own games and other UCC on the Service, and you will not be entitled to any revenue that those other users earn, even if they use your UCC.
a.For the avoidance of doubt, the rights granted in this Section 7(B)(3) include, but are not limited to, the right to reproduce sound recordings (and make mechanical reproductions of the musical works embodied in such sound recordings) and publicly perform and communicate to the public sound recordings (and the musical works embodied therein), all on a royalty-free basis. This means that you are granting Elernity rights to use your UCC as contemplated by this Section 7(B)(3) without the obligation to pay royalties to any third party, including, without limitation, a sound recording copyright owner (e.g., a record label), a musical work copyright owner (e.g., a music publisher), a performing rights organization (e.g., ASCAP, BMI, SESAC, etc.) (a "PRO"), a sound recording PRO (e.g., SoundExchange), any unions or guilds, and engineers, producers or other royalty participants involved in the creation of UCC.
b.Regarding the publicity and marketing rights, this allows us to provide a license to a TV show, movie, book, annual, encyclopedia or anthology, website, social media, online or print magazine or newspaper, or other commercial, non-commercial or educational purpose to use your UCC and associated username in ways that we think will help publicize or market the Services, any part of the Services, any UCC on the Services and tangible items off the Services, even in case you have exercised a right to be forgotten under the European General Data Protection Regulation. Other than the potential to earn virtual currency, we shall not be obligated to provide to you any compensation, attribution, or other payments for any reasons, including for exploitation of the license discussed immediately above, whether in relation to the Service or otherwise, nor are we obligated to exploit this license. BY ACCEPTING THESE TERMS AND CONTINUING TO USE THE SERVICE, YOU AGREE THAT THIS LICENSE APPLIES TO ANY UCC YOU PROVIDED TO US AT ANY TIME (FROM YOUR FIRST USE OF THE SERVICE, WHICH MAY PREDATE YOUR ACCEPTANCE OF THIS VERSION OF THE TERMS).
4.Templates. Templates may be made available to you (in our software tool 'Studio' or otherwise) as a starting point for creating your UCC, however your use of a template does not give you any copyrights or other ownership rights in such template.
5.UCC Representations and Warranties; Rights in UCC.
a.You are solely responsible for your UCC and you represent and warrant that:
i.You are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize us to exploit the license that you grant to us hereunder; and
ii.Your UCC, and the use of your UCC as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) require Elernity to obtain any further licenses from or pay royalties or compensation or other amounts or provide any attribution to any third parties; (iv) result in a breach of contract between you and a third party; or (v) cause us to violate any law or regulation.
b.You must not Provide any UCC if you are not the owner of or are not fully authorized to grant rights in all of the elements of the UCC you intend to Provide. In addition, if you only own the rights in and to a sound recording, but not to the underlying musical works embodied in such sound recordings, then you must not Provide such sound recordings unless you have all necessary rights, authorizations and permissions with respect to such embedded musical works that grant you sufficient rights to grant the licenses to Elernity under these Terms. You agree to pay all monies owing to any person as a result of Providing your UCC.
6.Specific Rules for Musical Works and for Recording Artists. If you are a composer or author of a musical work and are affiliated with a PRO, then you must notify your PRO of the royalty-free license you grant through these Terms to Elernity. You are solely responsible for ensuring your compliance with the relevant PRO's reporting obligations. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license(s) set forth in these Terms or have such music publisher enter into these Terms with Elernity. Just because you authored a musical work (e.g., wrote a song) does not mean you have the right to grant Elernity the licenses in these Terms. If you are a recording artist under contract with a record label, then you are solely responsible for ensuring that your use of the Service is in compliance with any contractual obligations you may have to your record label, including if you create any new recordings through the Service that may be claimed by your label.
7.Through-To-The-Audience Rights. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of third-party services will not have any separate liability to you or any other third-party for UCC Provided or used on such third-party services via the Service.
8.UCC Disclaimer. We are under no obligation to edit or control UCC that you or others Provide and will not be in any way responsible or liable for UCC. We may, however, at any time and without prior notice, screen, remove, edit, or block any UCC that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service, you will be exposed to UCC from a variety of sources and acknowledge that UCC may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against us with respect to UCC. If notified by a user or content owner that UCC allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the UCC, which we reserve the right to do at any time and without notice. For clarity, we do not permit copyright-infringing activities on the Service. Please alert us of any inappropriate UCC or other materials you find on the Service.
C.Digital Millennium Copyright Act
1.Notice. We respect the intellectual property rights of others and we ask you to do the same. If you are a copyright owner or an agent of a copyright owner and believe that any content on the Service infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by contacting our Copyright Agent at email@example.com. You acknowledge that if you fail to comply with all of the requirements of this Section 7(C), your DMCA notice may not be valid. You must provide the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
a.An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b.A description of the copyright-protected work or other intellectual property right that you claim has been infringed;
c.A description of the material that you claim is infringing and where it is located;
d.Your address, telephone number, and email address;
e.A statement by you that you have a good faith belief that the use of those materials is not authorized by the copyright owner, its agent, or the law; and
f.A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
2.Counter-Notice. Regarding any content that was removed or disabled, if you believe that your content is not infringing or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice to our Copyright Agent. When our Copyright Agent receives a counter-notice, we may send a copy of the counter-notice to the original complaining party informing that party that we may, in 10 business days, replace the removed content or stop disabling it. Unless the copyright owner files an action seeking a court order against the provider of the content, the removed content may be replaced or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, in our sole discretion.
3.Repeat Infringer Policy. Elernity's intellectual property policy is to: (i) remove or disable access to material that Elernity believes in good faith, upon notice from an intellectual property rights owner or his or her agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (ii) terminate the Accounts of and suspend access to the Service by "repeat infringers." Elernity considers a "repeat infringer" to be any user that has three times Provided UCC that Elernity has removed or disabled access to (each, a "strike"). However, Elernity has the discretion to terminate the Account of or suspend access to the Service by any user even after Elernity has assessed a single strike. Elernity will assess a strike on a particular user's Account any time Elernity takes the action in (i) above. Elernity may also assess a strike on a particular user's Account if Elernity believes upon its own determination that UCC Provided by such user is infringing, and Elernity may remove or disable access to such UCC in its sole discretion.
a.Our policies prohibit you from Providing UCC that infringes trademarks. If you Provide UCC that infringes trademarks, your UCC can be blocked or removed.
b.If you are a trademark owner that believes your trademark is being infringed, please note that we are not in a position to mediate disputes between users and the holders of trademark rights. That being said, we take your rights seriously. So, we will look into and try to resolve any allegations of trademark infringement. Therefore, if you feel that your trademark rights are being infringed, contact our Trademark Agent at firstname.lastname@example.org. When you contact us, please provide the following information in writing:
i.An electronic or physical signature of the person authorized to act on behalf of the owner of the trademark;
ii.A description of the trademark right that you claim has been infringed;
iii.A description of the material that you claim is infringing and where it is located;
iv.Your address, telephone number, and email address;
v.A statement by you that you have a good faith belief that the use of those materials is not authorized by the trademark owner, its agent, or the law; and
vi.A statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the trademark owner or authorized to act on the copyright or intellectual property owner's behalf.
A.Third-Party Materials Disclaimer. Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties ("Third-Party Materials"). You understand that by using the Service, you may encounter Third-Party Materials, such as third-party advertisements and promotional content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that may contain links or references to objectionable material. Nevertheless, you agree to use the Service at your sole risk and that we shall not have any liability to you for content that may be found to be offensive, indecent, objectionable, inaccurate, incomplete, untimely, invalid, illegal, of poor quality or otherwise.
B.Online Safety. Elernity cares about the safety of our users. If you see any content or materials (including Third Party Materials) on the Service that appears to recruit, entice, advertise, or solicit any person to perform a commercial sexual act, please send a communication to the following email@example.com to immediately report the user and situation.
C.Use at Own Risk. In addition, third-party services (as discussed above) and Third-Party Materials that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. We make no representation that such services and materials are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws.
9.Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify us and our officers, directors, employees, consultants, affiliates, investors, business partners, subsidiaries and agents (together, the "Affiliated Parties") from and against every claim, liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use of the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property or proprietary right, publicity or privacy right, property right, or confidentiality obligation; or (d) any Dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
A."As Is." THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AFFILIATED PARTIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE AFFILIATED PARTIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
B.No Responsibility. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE AFFILIATED PARTIES OR US THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER USERS ON THE SERVICE, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. THESE LIMITATIONS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
A.No Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AFFILIATED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
B.Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE AFFILIATED PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO $1,000 (EXCEPT AS NOTED IN THE ARBITRATION SECTION BELOW).
C.Basis of Bargain. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
A.No Class Actions and Severability. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, except as otherwise provided by the European General Data Protection Regulation. You and we agree as follows: (a) neither you nor we will seek to have a Dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity; (b) no arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding; and (c) if the class action waiver or any part of this Section 12 is found to be illegal or unenforceable as to all or some parts of a Dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.
B.Governing Law. These Terms are governed by the laws of the State of Georgia without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and we agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the Northern District of Georgia for the purpose of litigating any Dispute, except as otherwise provided by the General Data Protection Regulation of the European Union.
C.Arbitration of Disputes
1.Agreement to Arbitrate. You and we agree to arbitrate all Disputes (except those exceptions specifically set out in the next subsection) between you and us or our affiliates, except Disputes related to our intellectual property rights. You and we empower the arbitrator with the exclusive authority to resolve any Dispute, including without limitation any part of these Terms is void or voidable.
2.Disputes Excluded from Arbitration. You and we agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit your or our right to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; (d) lodge a complaint or remedy under the GDPR; or (e) file suit in a court of law to address an intellectual property infringement claim or to compel or uphold any arbitration decision hereunder. In such cases, neither you nor we shall need to follow the informal negotiations procedure and timeline set out in the next subsection.
3.Informal Negotiations. To help get you and us to a resolution and to control costs for you and us regarding any Dispute, you and we agree to first attempt to informally discuss and try to negotiate a resolution to any Dispute (except the Disputes specifically set out below) for at least 60 days from when notice of the Dispute is sent. Those informal negotiations will commence upon written notice from you to us or us to you. We will send our notice to your registered email address and any billing address that you provided to us. You will send your notice to firstname.lastname@example.org. After 60 days, you or we may commence arbitration. If the Dispute cannot be resolved within that time period, and if either you or we desire to continue the Dispute, the party desiring to continue the Dispute shall commence arbitration.
4.Commencing Arbitration. If you and we do not resolve a Dispute by informal negotiation, the Dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU AGREE THAT YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY AND GIVING UP YOUR RIGHT TO A CLASS ACTION. Arbitration will be administered by the American Arbitration Association (the "AAA") under its Consumer Arbitration Rules (the "AAA Rules"). You can find more information at www.adr.org or by calling (800) 778-7879. Arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
5.Fees and Location. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Fulton County, Georgia, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve Disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
6.During the arbitration, the amount of any settlement offer made by you or us may not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any). If you win in the arbitration and are awarded an amount that exceeds the last written settlement amount offered by us, we will pay you the highest of the following: (i) the amount awarded by the arbitrator or (ii) $10,000.
D.Choice of Forum for Disputes That Are Not Subject to Arbitration. You and we agree that any action at law or in equity arising out of or relating to these Terms that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in the Northern District of Georgia, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action, except as otherwise provided by the European General Data Protection Regulation.
A.Complaints. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, CA 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
B.Minors. If you are a California resident under the age of 18, you may request and obtain removal of certain personal content or information you have publicly posted to the Service. This generally includes personally identifiable information, but does not include anonymized information, or UCC that you Provide (because you've received consideration for Providing it). To make such a request, please contact us at email@example.com. All requests must include your username and must provide a specific description of the content or information that you want removed so that we can locate that content or information. We will not accept requests via postal mail, telephone or facsimile. We may not be able to respond if you do not provide complete information. Please be aware that such a request does not ensure complete or comprehensive removal of the content or information you have posted and that there may be circumstances in which the law does not require or allow removal even if requested.
14.Survival. Any part of these Terms which by their nature should survive the termination of these Terms, shall survive such termination, including without limitation Sections 7, 9, 10, 11, 12, and 13.
15.Waiver. No waiver of any part of these Terms by either you or us shall be deemed a continuing or further waiver of any such part or any other part of the Terms, and your or our failure to assert any rights or part of these Terms shall not be deemed or otherwise constitute a waiver of such right or part.
16.General. These Terms, together with the other documents expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and us regarding your use of the Service. Except as expressly permitted in these Terms, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time to any entity without notice or consent. This agreement is binding on and inures to the benefit of our respective heirs, successors and assigns. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible (or, if it cannot legally be given any effect, will be severed from these Terms), and the remaining parts will remain in full force and effect. Nothing in these Terms shall be deemed to confer any rights or benefits on a third party. YOU AND WE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.Compliance with Laws. You will comply with all laws in your use of the Services, including any applicable export laws. You will not directly or indirectly export, re-export, or transfer the Services to prohibited countries or individuals or permit use of the Services by prohibited countries or individuals.
19.Contact Information. The Service is offered by Elernity Limited located at Unit 2001, 20 Floor, Harbour Centre, 25 Harbour Road, Wan Chai, Hong Kong. You may contact us by sending correspondence to that address, using the following e-mail address (firstname.lastname@example.org). If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the address above with your electronic mail address and a request for these Terms.