Thank you for signing up for a subscription with MyToonz (“MyToonz”, “we” or “us”). By clicking “Accept” you accept the Terms and Conditions of using or accessing any MyToonz Service or related services. If you are using a MyToonz Service or related services on behalf of a company or other entity or as an individual, then “Customer” or “you” means that entity, and you are binding that entity to these Terms and Conditions. You represent and warrant that you have the legal power and authority to enter into these Terms and Conditions and that, if the Customer is an entity, these Terms and Conditions and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to these Terms and Conditions. Please note that we have unrestricted authority to modify these Terms and Conditions, as further described in the amendments section below, kindly make sure to check this page from time to time. These Terms and Conditions include any Order Forms and Service-Specific Terms (as defined below) as well as any policies or exhibits linked to or referenced herein.
These Terms and Conditions are effective as of Dec, 2020
1. OVERVIEW OF THE MyToonz WEBSITE/PLATFORM.
MyToonz provides a suite of entertainment shows and programs that allows subscribers to view, personalize, and analyze the experiences they deliver through a variety of platforms, such as web, mobile, server-side, and various OTT applications. To accomplish this, Customer first installs MyToonz Code for the relevant platform, and then uses the tools within the applicable MyToonz Service to view the selected Content available on the Website/Platform. Based on these selections, variations of Customer Properties are presented to Visitors/Authorized Users. The Service-Specific Terms and the applicable Documentation provide additional details about each MyToonz Service.
2. DEFINITIONS.
2.1 “Add-On” means integrations, applications, and other add-ons that are used with the MyToonz Service.
2.2 “Affiliate/Group Company” means any entity which is controlled by, in control of, or is under common control with a party to this Terms and Conditions, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.
2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the MyToonz Service.
2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.
2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Terms and Conditions, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.
2.6 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the MyToonz Service. This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.
2.7 “Customer Apps” means the applications (such as for mobile device platforms or OTT devices) expressly identified in the applicable Order Form.
2.8 “Customer Data” means: (i) Content; (ii) Submitted Data; (iii) Visitor Data; and (iv) any other Customer Data specified in the Service-Specific Terms.
2.9 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties (as may be supported by MyToonz) specified in the applicable Order Form.
2.10 “Customer Sites” means the web domains expressly identified in the applicable Order Form.
2.11 “Documentation” means the end user technical documentation created by MyToonz and provided with the MyToonz Service, currently available in the Knowledge Base and Developer Docs at https://www.MyToonz.com/support
2.12 “MyToonz Code” means the code developed and provided by MyToonz to Customer for use in connection with the MyToonz Service, which may include MyToonz’s JavaScript code, SDK(s) and Add-Ons developed and provided by MyToonz.
2.13 “MyToonz Service” means the specific proprietary software-as-a-service product(s) of MyToonz specified in Customer’s Order Form, including any related MyToonz Code and Documentation, and excluding any Third-Party Products.
2.14 “MyToonz Media” means the MyToonz Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the MyToonz Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.
2.15 “Order Form” means any MyToonz ordering documentation or online sign-up or subscription flow that references this Terms and Conditions.
2.16 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
2.17 “Scope of Use” means the usage limits or other scope of use descriptions for the MyToonz Service included in the applicable Order Form (including descriptions of packages and features) or Documentation. These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.
2.18 “Service-Specific Terms” means the additional or different terms and conditions (if any) specific to a MyToonz Service or other MyToonz products, features, services or subscription plans. Service-Specific Terms are currently available at https://www.MyToonz.com/terms-of-use
2.19 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the MyToonz Service, including Third-Party Content.
2.20 “Subscription Term” means the initial term for the subscription to the applicable MyToonz Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
2.21 “Third-Party Content” means content, data or other materials that Customer provides to the MyToonz Service from its third-party data providers, including through Add-Ons used by Customer.
2.22 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by MyToonz.
2.23 “Virus” means a virus, Trojan horse, or worm that is designed to harm, disrupt or interfere with computers, software or hardware and detectable using commercially reasonable procedures.
2.24 “Visitor” means any end user of a Customer Property.
2.25 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the MyToonz Service, including any data specified in the Service-Specific Terms.
Other terms are defined in other Sections of this Terms and Conditions or in the relevant Service-Specific Terms, policies, or Exhibits.3. ACCOUNT REGISTRATION AND USE.
Customer and its Authorized Users may need to register for a MyToonz account in order to access or receive a MyToonz Service. Account information must be accurate, current, and complete, and will be governed by MyToonz’s Privacy Policy (currently available at https://www.MyToonz.com/privacy-policy). Customer agrees to keep this information up-to-date so that MyToonz may send notices, statements, and other information by email or through Customer’s account. Customer must ensure that any user IDs, passwords, and other access credentials (such as API tokens) for the MyToonz Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any MyToonz Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Customer must notify MyToonz immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.
4. USE RIGHTS.
4.1 Use of MyToonz Services. Subject to these Terms and Conditions, MyToonz grants Customer a worldwide, non-exclusive, non-transferable, non-sub-licensable right and license during the applicable Subscription Term (subscription term for each customer shall commence upon subscribing to MyToonz Services and shall continue till the date of expiry as provided in the Order Form or as maybe terminated pre-maturely under the term herein) to access and use the MyToonz Service(s) designated on Customer’s Order Form solely for Customer’s internal personal purposes and strictly not for any commercial use, but only in accordance with these Terms and Conditions (including without limitation any applicable Service-Specific Terms), the Documentation, and all applicable Scope of Use descriptions. Where specified in the Service-Specific Terms, the MyToonz Service may require installation of MyToonz Code on Customer Properties. In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant MyToonz Code on the specified Customer Properties.
4.2 Use by Others. Customer may permit its Authorized Users to use the MyToonz Service, provided their use is for Customer’s benefit only and remains in compliance with these Terms and Conditions. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with these Terms and Conditions. The Customer hereby agrees and acknowledges that the use of MyToonz Services by all Authorized Users in aggregate will count towards and be binding on all such Authorized Users.
4.3 General Restrictions. Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the MyToonz Service to a third party (except as maybe provided under these Terms and Conditions); (ii) incorporate the MyToonz Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the MyToonz Service (which is deemed MyToonz’s Confidential Information); (iv) modify or create a derivative work of the MyToonz Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any MyToonz Service (including MyToonz Code), except to the extent expressly permitted by applicable law and then only with advance notice to MyToonz; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the MyToonz Service, or configure the MyToonz Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the MyToonz Service other than the MyToonz Code installed in Customer Properties as specifically permitted above; (viii) access the MyToonz Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the MyToonz Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without MyToonz’s prior written consent; or (x) remove or obscure any proprietary or other notices contained in the MyToonz Service, including in any reports or output obtained from the MyToonz Service; (xi) the Authorized User/ Customer shall not do any such act, deed or thing that may infringe upon the Copyright or any other rights including but not limited to Intellectual Property Rights of MyToonz Services and/or any content embedded therein which might prejudice MyToonz.
4.4 Beta Releases and Free Access Subscriptions. MyToonz may provide Customer with a MyToonz Service or MyToonz Code for free or on a trial basis (a “Free Access Subscriptions”) or other early-stage MyToonz Services, which are optional for Customer to use. This Section will apply to any Free Access Subscriptions and supersedes any contrary provision in this Terms and Conditions. MyToonz may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions. Nevertheless, and without limiting the other disclaimers and limitations in this Terms and Conditions, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. MyToonz may terminate Customer’s right to use any Free Access Subscriptions at any time for any reason or no reason in MyToonz’s sole discretion, without liability and the Customer understands and agrees that such Free Access Subscription is granted at the sole discretion of MyToonz.
5. CUSTOMER DATA.
5.1 Rights in Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any MyToonz Media). Customer hereby grants MyToonz a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the MyToonz Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data). For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the MyToonz Service.
5.2 Aggregate/Anonymous Data. Customer agrees that MyToonz will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is MyToonz Media, which MyToonz may use for any business purpose during or after the expiry of the Subscription Term (including without limitation to develop and improve MyToonz’s services and to create and distribute reports and other materials). For clarity, MyToonz will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs). Customer agrees and acknowledges that, MyToonz is not responsible for third party use of Aggregate/Anonymous Data.
5.3 Security. MyToonz agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification, which are described in more detail on MyToonz’s website, currently available at https://www.MyToonz.com/privacy-policy. MyToonz’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.
5.4 Storage. MyToonz does not provide an archiving service. During and after the Subscription Term, Customer acknowledges that MyToonz may delete Content no longer in active use. MyToonz expressly disclaims all other obligations with respect to storage. Additional storage terms may be specified in the applicable Service-Specific Terms.
5.5 Data Export. MyToonz provides the ability for Customer to export data at any time in the MyToonz Service as described in the Documentation.
6. CUSTOMER OBLIGATIONS.
Customer agrees to: (i) maintain a legally-adequate privacy policy on its Customer Properties and provide all required disclosures to its Visitors (if applicable); (ii) obtain all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by these Terms and Conditions and to grant MyToonz the rights set out in these Terms and Conditions; (iii) use the MyToonz Service in compliance with MyToonz’s then-current Acceptable Use Policy (currently available at https://www.MyToonz.com/privacy-policy); (iv) not submit, collect, or use any Regulated Data to or with the MyToonz Service (including from Third-Party Products or services), except where expressly permitted by the Service-Specific Terms or for online identifiers (such as IP addresses or cookie IDs) collected by default by the MyToonz Service; (v) comply with any third-party terms applicable to any Customer Apps (such as app store terms), and to any Third-Party Products or Services used in connection with the MyToonz Service; (vi) not take any action that would cause MyToonz, the MyToonz Service to become subject to any third-party terms (including open source license terms). Customer represents and warrants that it’s Customer Properties and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. If Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products, it must promptly: (a) stop using such third party products with the MyToonz Service; and (b) notify MyToonz. If MyToonz receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products or Services, MyToonz may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
7. SERVICES
Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form. Any support services are subject to these Terms and Conditions and MyToonz’s applicable support policies. MyToonz may also provide on boarding, deployment and other services under these Terms and Conditions. The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing these Terms and Conditions. Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the MyToonz Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the MyToonz Service itself. MyToonz’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information required from the Customer to deliver the services.
8. FEES AND PAYMENT.
Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. MyToonz’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of MyToonz. Customer will make tax payments to MyToonz to the extent amounts are appropriately included in MyToonz’s invoices. MyToonz sends invoices electronically, and invoices for the MyToonz Service in advance as set out in the Order Form, and for overages or additional CPM, if applicable in the relevant Order Form, monthly in arrears. If Customer requires a Purchase Order number referenced on MyToonz’s invoice, Customer must promptly provide the Purchase Order number. If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number. Some customers may have the option to pay by credit card. If Customer is paying by credit card, it authorizes MyToonz to charge and fees other amounts automatically to Customer’s credit card without invoice. Payments are non-refundable and non-creditable and payment obligations non-cancellable.
9. TERM AND TERMINATION.
9.1 Term: These Terms and Conditions are effective until all Subscription Terms for the MyToonz Service(s) have expired or are terminated as expressly permitted in these Terms and Conditions.
9.2 Subscription Term and Renewals: By executing an Order Form for purchase of a MyToonz Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause) or a Service-Specific Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the MyToonz Service. Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated in the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term. Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at MyToonz’s then-applicable rates.
9.3 Suspension of Service: MyToonz may suspend Customer’s access to the MyToonz Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits. MyToonz may also suspend Customer’s access to the MyToonz Service(s), remove Customer Data or disable Third-Party Products as per its sole discretion if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the MyToonz Service. MyToonz will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless these Terms and Conditions have been terminated, MyToonz will cooperate with Customer to promptly restore access to the MyToonz Service once it verifies that Customer has resolved the condition requiring suspension.
9.4 Termination for Cause: MyToonz may terminate these Terms and Conditions, including any related Order Form, if the Customer: (i) fails to cure any material breach of these Terms and Conditions (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter). MyToonz may also terminate these Terms and Conditions or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of these Terms and Conditions.
9.5 Effect of Termination: Upon any expiration or termination of these Terms and Conditions or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop any use of the applicable MyToonz Service(s) (including any related MyToonz Media) on all the Customer Properties; (b) stop distributing any MyToonz Code installed on its Customer Properties; and (c) delete (or, at MyToonz’s request, return) any and all copies of the MyToonz Code, any MyToonz documentation, passwords or access codes, and any other MyToonz Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable MyToonz Service will cease and MyToonz may delete the Customer Data at any time after 30 days from the date of termination(save and except for in the event of any dispute or monetary claims). If MyToonz terminates these Terms and Conditions for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where these Terms and Conditions specifies an exclusive remedy, all remedies under these Terms and Conditions, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of these Terms and Conditions: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 11 (Confidential Information); 12(MyToonz Media); 13 (Indemnification); 13.2 (Disclaimers); 15 (Limitations of Liability); 16(Third-Party Products and Services); and 17 (General).
INTELLECTUAL PROPERTY RIGHTS
The Services are protected by trade dress, copyright, moral rights, trademark and/or other laws relating to intellectual property and other proprietary rights, and are solely and exclusively owned by MyToonz and its licensors. All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively, the “Proprietary Material”) that users see or read through the Services is owned by MyToonz, excluding User Generated Content that MyToonz has the right to use. The Services are licensed, not sold, to end users. Subject to Your compliance with the terms and conditions of these Terms and Conditions, and solely for as long as You are expressly permitted by MyToonz to access with respect to any App made available via download (i) to install such App on an Internet-connected personal computer, mobile phone, or other device in Your possession and control, and (ii) to access and use such App as installed on such device. If You fail to comply with any of the terms or conditions set forth in these Terms and Conditions, then these Terms and Conditions (including the foregoing grant of permission to use the Services) will automatically terminate, whereupon You will immediately (x) cease accessing and using the Services; and (y) for a Platform/App made available via download of a software application, remove (e.g. by uninstalling and deleting) such Platform/App from any mobile device on which You installed it. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Services without MyToonz’s express prior written consent and, if applicable, the holder of the rights to the User Generated Content. Any use of Proprietary Material, other than as permitted herein, is expressly prohibited without the prior written consent of MyToonz and, if applicable, the holder of the rights to the User Generated Content.
The trade names, trademarks and service marks of MyToonz, including without limitation MyToonz and the MyToonz logos are owned by MyToonz, whether registered or unregistered. Nothing contained in these Terms and Conditions or on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of MyToonz’s trade names, trademarks or service marks without MyToonz’s prior written consent. Any other trademarks, service marks, logos and/or trade names appearing via the Service are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the MyToonz.
MyToonz respects the intellectual property rights of content creators. We explicitly prohibit our content providers from using any MyToonz Platforms/App/channels/Website(s) or other MyToonz services, including without limitation channels/Website(s) or services provided by our subsidiaries or affiliates (collectively, the “MyToonz System”) to publish or transmit materials in violation of another party’s copyrights. MyToonz responds to copyright owners who believe their copyrights are violated by material contained on the MyToonz System in accordance with the Digital Millennium Copyright Act (“DMCA”).
CONFIDENTIAL INFORMATION
Confidentiality Obligation: Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by these Terms and Conditions; and (ii) only use the other party’s Confidential Information to fulfil its obligations and exercise its rights under this Terms and Conditions. Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for MyToonz, includes the subcontractors), provided that the party remains responsible for any recipient’s compliance with the terms of this information and that these recipients are bound to confidentiality obligations no less protective than this Section.
Exclusions: These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
MyToonz MEDIA
Ownership and Updates: This is a subscription Terms and Conditions for access to and use of the MyToonz Service. Customer acknowledges that it is obtaining only a limited right to use the MyToonz Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are created and transferred to Customer under these Terms and Conditions. Customer agrees that MyToonz (or its content licensors) retain all rights, title and interest (including all intellectual property rights) in and to all MyToonz Media (which is deemed MyToonz’s Confidential Information) and reserves any licenses not specifically granted in these Terms and Conditions. Other than the MyToonz Code, the MyToonz Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any MyToonz Service and that MyToonz at its option may make updates, bug fixes, modifications or improvements to the MyToonz Service from time-to-time.
Feedback: If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to MyToonz (collectively, “Feedback”), Customer hereby grants MyToonz a worldwide, perpetual, non-revocable, sub-licensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however MyToonz will not identify Customer as the source of the Feedback. Nothing in these Terms and Conditions limits MyToonz’s right to independently use, develop, evaluate, or market any services, whether incorporating Feedback or otherwise.
INDEMNIFICATION
Customer agrees to defend and indemnify MyToonz from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations). Customer must not settle any claim without MyToonz’s prior written consent if the settlement would require MyToonz to admit fault.
DISCLAIMERS
ALL MyToonz MEDIA AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER MyToonz NOR ITS CONTENT LICENSORS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. MyToonz MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT MyToonz MEDIA WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT MyToonz MEDIA WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. MyToonz DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. MyToonz WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS AND SERVICES, THIRD-PARTY CONTENT, OR NON-MyToonz SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THESE TERMS AND CONDITIONS, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THESE TERMS AND CONDITIONS, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON MyToonz MEDIA OR MyToonz’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
LIMITATIONS OF LIABILITY.
Liability Cap: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MyToonz OR ITS CONTENT LICENSORS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES. MyToonz’S AND ITS CONTENT LICENSORS TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO MyToonz FOR THE APPLICABLE MyToonz SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
Exceptions: Notwithstanding the foregoing, none of the limitations in this section 15 excludes either party’s liability for fraud or for death or personal injury to the extent caused by a party’s negligence. In addition, the laws in some jurisdictions may not allow some of the limitations of liability in this section. If any of these laws is found to apply to this terms and conditions, this Section 15 will apply to the maximum extent permitted by law.
Failure of Essential Purpose: Each party acknowledges and agrees that this Section 15 forms the fundamental basis of these Terms and Conditions and a reasonable allocation of risk between the parties and will survive and apply to any claims arising out of or related to this terms and conditions, any MyToonz Media or any related services, regardless of the theory of liability (contract, tort, strict liability or otherwise), even if any limited remedy in this terms and conditions is found to have failed of its essential purpose.
THIRD-PARTY PRODUCTS AND INTEGRATIONS
If Customer uses any Third-Party Products in connection with the MyToonz Services, then in such circumstances, MyToonz does not warrant or support any such Third-Party Products or Third-Party Content (whether or not these items are designated by MyToonz as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for above mentioned items, including their modification, deletion, disclosure, or collection of Customer Data. MyToonz is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the MyToonz Services by Customer or under Customer’s direction. Customer may use MyToonz’s Add-on Platform to enable non-MyToonz Add-Ons for use with the MyToonz Services. Those Add-Ons are subject to the Add-On Platform Terms of Service. Currently available at
GENERAL.
Assignment: These Terms and Conditions will bind and inure to the benefit of each party’s successors and assigns. MyToonz may assign these Terms and Conditions to any third party including but not limited to its Affiliates and Group Company or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. The Customer shall not be entitled to assign their rights and obligations under these Terms and Conditions for any reason whatsoever. Any attempt to transfer or assign these Terms and Conditions except as expressly authorized under this Section 17.1 will be void.
Notices: Any notice or communication under these Terms and Conditions must be in writing. Customer must send any notices under these Terms and Conditions (including breach notices) to MyToonz, in English, at the following address, legal@MyToonz.com, and include “Attn. Legal Department” in the subject line. MyToonz may send notices to the email addresses on Customer’s account or, at MyToonz’s option, to Customer’s last-known postal address. MyToonz may also provide operational notices regarding the MyToonz Service or other business-related notices through conspicuous posting of the notice on MyToonz’s website or the MyToonz Service. Each party consents to receiving electronic notices. MyToonz is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
Publicity: Unless otherwise specified in the applicable Order Form, MyToonz may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as a MyToonz customer on MyToonz’s website/ App and other platforms belonging to MyToonz and/or its Affiliates and group companies.
Subcontractors: MyToonz may use subcontractors and permit them to exercise the rights granted to MyToonz in order to provide the MyToonz Service and related services under these Terms and Conditions. These subcontractors may include, for example, MyToonz’s hosted service and CDN providers.
Independent Contractors: The parties to these Terms and Conditions are independent contractors, and these Terms and Conditions does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Force Majeure: Neither party will be liable for any delay or failure to perform its obligation under these Terms and Conditions (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act or any other such similar contingencies.
Export: Customer is responsible for obtaining any required export or import authorizations for use of the MyToonz Services. Customer represents and warrants that it, its Affiliates and Group Companies, and its Authorized Users are not on any government list of prohibited or restricted parties or located in any enemies countries (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the MyToonz Service in violation of any U.S. export embargo, prohibition or restriction.
Amendments; Waivers: Any modification or amendment to this Terms and Conditions must be made in writing and executed by an authorized representative of each party. If, during Customer’s Subscription Term, MyToonz modifies the Service-Specific Terms relevant for a specific MyToonz Service purchased under an Order Form, the modified version will take effect upon Customer’s next renewal. If MyToonz launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use. For Free Access Subscriptions or if Customer accepts new Order Forms or Order Form changes following the modification, the changes will take effect immediately. However, during a Subscription Term, MyToonz may update MyToonz’s Security page, Privacy Policy, and Acceptable Use Policy from time-to-time to reflect process improvements or changing practices, provided these changes do not substantially diminish Customer’s rights or create substantial additional Customer obligations during a Subscription Term, and these changes will take effect thirty (30) days from the date of posting. MyToonz’s Documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term MyToonz may update the Documentation to reflect best practice with the relevant MyToonz Service, provided that these changes do not substantially diminish Customer’s rights or create substantial Customer obligations. In the event of any conflict between these Terms and Conditions and any Order Form, these Terms and Conditions will take precedence unless otherwise expressly provided. No waiver will be implied from conduct or failure to enforce or exercise rights under these Terms and Conditions. Waivers must be made in writing and executed by an authorized representative of the waiving party.
Severability: If any provision of these Terms and Conditions is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that these Terms and Conditions may otherwise remain in effect.
No Third-Party Rights: Nothing in these Terms and Conditions confers on any third party the right to enforce any provision of these Terms and Conditions. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.
Entire Terms and Conditions: These Terms and Conditions represents the parties complete and exclusive understanding relating to the subject matter of these Terms and Conditions. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the MyToonz Media or any other subject matter covered by these Terms and Conditions. Any terms provided by Customer (including as part of any purchase order/ Subscription or other business form used by Customer) are for administrative purposes only, and have no legal effect.