Mobile Application End User License Agreement

This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and BrainPOP LLC ("Company"). This Agreement governs your use of the BrainPOP application on an Apple iOS device, (including all related documentation, the "Application"). The Application is licensed, not sold, to you.

BY DOWNLOADING, INSTALLING OR USING THE APPLICATION, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT (OTHERWISE HAVE YOUR PARENTS/LEGAL GUARDIAN OR AN EDUCATOR AUTHORIZED BY YOUR PARENTS/LEGAL GUARDIAN SUBSCRIBE FOR YOU); (C) YOU ARE NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT HAS BEEN DESIGNATED BY THE U.S. OVERNMENT AS A “TERRORIST SUPPORTING” COUNTRY; (D) YOU ARE NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES; AND (E) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE APPLICATION AND DELETE IT FROM YOUR MOBILE DEVICE.

License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Application for your personal, noncommercial use on a single Apple iOS device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation; and

(b) access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 5 below) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as referenced in Section 5 below.

The content offered through the Application (the “Content”) is licensed to you for the duration of your subscription to the Application, subject to the terms of this Agreement. The license granted to you herein under to use the Application and the Content is limited, revocable, non-exclusive, non-commercial, non-transferable, and non-sublicensable, for personal purposes, and you may use it on an iOS Product that you own or control and as permitted by Apple’s Usage Rules. All other uses, not explicitly granted to you under this Agreement are restricted. Company reserves all rights not expressly granted to you. You may not copy, modify, rent, lease, or sublicense the Application and/or the Content, create derivative works based on the Content, or otherwise commercially exploit the Content. Other restrictions are included in the Terms of Use (https://www.brainpop.com/about/terms_of_use/). If you breach these restrictions, you may be subject to prosecution and damages.
License Restrictions. You shall not:
(a) copy the Application, except as expressly permitted by the limited license granted under Section 1 above;

(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time; or

(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application.
Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than the limited right to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain the entire right, title, and interest in and to the Application, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
The Content is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All right, title and interest (including, without limitation, all copyrights) in and to the Content are the property of Company. You may not remove any trademark, copyright or other notice from copies of the content. Company attempts to provide accurate descriptions of the Content. However, Company does not warrant that the Content, or any part thereof, is accurate, complete, reliable, current, or error-free. If any Content is materially misrepresented, your sole remedy is to cease use of that Content and to notify Company of the purported error.
Collection and Use of Your Information; Privacy Policy. You acknowledge that when you download, install, or use the Application, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality. All information we collect through or in connection with this Application is subject to our Privacy Policy (https://www.brainpop.com/about/privacy_policy/). By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to such information in compliance with the Privacy Policy.

Content and Services. The Application may provide you with certain access to Company's website located at www.brainpop.com (the "Website") and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by Website's Terms of Use and Privacy Policy located at Terms of Use (https://www.brainpop.com/about/terms_of_use/) and Privacy Policy (https://www.brainpop.com/about/privacy_policy/), as updated from time to time, which are incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of such Terms of Use and Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application's features and functionality. Any violation of such Terms of Use will also be deemed a violation of this Agreement.
Your usage of the Application is also governed by the Usage Rules set forth in the App Store Terms of Use (“Usage Rules”). In the event of any inconsistencies between this Agreement and the Usage Rules, the Usage Rules shall govern. You acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

Becoming a subscriber to the Application requires you to hold a registered account with Company. You are required to provide information associated with creation of your account, and you acknowledge and agree that Apple may provide Company with such information associated with your account. You agree to provide the accurate and current information requested during registration and to promptly update your information as necessary to keep it accurate and complete at all times. You agree to keep confidential all personal access credentials and account identifiers resulting from registering with the Application (passwords and user names) and to be held responsible for all activities under your account. Further, you agree to notify us of any unauthorized use of your password, other access credentials or account. Only one person may use each account or accounts (user name and password) associated with a purchased subscription, unless expressly agreed in writing otherwise by BrainPOP. For information regarding Company’s collection and storage of your information and uses of gathered information, please review the Privacy Policy (https://www.brainpop.com/about/privacy_policy/). Note that Apple maintains its own privacy policy and you are also subject to such Apple Privacy Policy while visiting the Apple App Store. You may request deletion of your registered account by sending notice to: legal@brainpop.com. Sending a request for deletion of your registered account may not cancel your subscription. All subscription cancellations must be made in accordance with and are subject to Section 22 of this Agreement.
Geographic Restrictions. The Content and Services are offered from facilities located in the State of New York in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Content and Services from outside the United States, you are responsible for compliance with local laws.

Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
(a) the Application will automatically download and install all available Updates; or

(b) you may receive notice of or be prompted to download and install available Updates.

If Updates are not set by your Mobile Device to be automatically downloaded and installed, you shall promptly download and install all then available Updates. You acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
Third-Party Materials. The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through thirdparty advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.

Term and Termination.
(a) The term of Agreement commences when you download and/or install the Application and will continue in effect until terminated by you or Company as set forth in this Section 9.

(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

(c) Company may terminate this Agreement at any time without notice if it ceases to support the Application, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d) Upon termination:

(i) all rights granted to you under this Agreement will also terminate; and

(ii) you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

(e) Termination will not limit any of Company's rights or remedies at law or in equity.
Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR

ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR

(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
Indemnification. You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

Export Regulation. The Application may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application available outside the US.

US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in New York City and New York County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED, UNLESS SPECIFICALLY PROHIBITED BY APPLICABLE LAW.

Entire Agreement. This Agreement, Company’s Terms of Use (https://www.brainpop.com/about/terms_of_use/) and Company’s Privacy Policy (https://www.brainpop.com/about/privacy_policy/) as updated from time to time constitute the entire agreement between you and Company with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application. This Agreement supersedes any prior agreements, understandings and representations between you and Company relating to the Application.

Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

Maintenance and Support. Customer service and support is available at appsupport@brainpop.com. Company is solely responsible for providing any maintenance and support services with respect to Application, as specified in the Terms of Use (https://www.brainpop.com/about/terms_of_use/), or as required under applicable law. You hereby acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.

Contact. You may contact Company for any questions, complaints or claims with respect to Application at: www.brainpop.com/contact
BrainPOP
71 W 23rd St., 17th Fl.
New York, NY 10010
Tel (toll free number): 1.866.542.7246
Email: appsupport@brainpop.com
Description and Terms of Sale of the Subscription. Application subscriptions are either paid monthly or yearly subscriptions, depending on your selection during sign-up, to access educational content resources available by BrainPOP to iPhone OS Products, in accordance with the terms of service as set forth herein and your selection during sign-up. Your Application subscription, depending on your subscription selection, may include: BrainPOP, BrainPOP Jr., and/or BrainPOP Combo (collectively, “BrainPOP Products”). BrainPOP Products allow you to access the educational Content resources available by BrainPOP according to your subscription selection of BrainPOP Products to iPhone iOS products through the Application, for the price selected by you in your sign up for the subscription to the Application. Prices are in U.S. dollars and are subject to change. Other restrictions and taxes may apply. The use of the BrainPOP Products requires internet access and an Apple Store account. The use of the Application requires an Apple Store account and, depending on your subscription selection, internet access. Payment will be charged to your Apple Store Account at confirmation of purchase. The Application subscriptions shall automatically renew each month or year, depending on your selection during sign-up, at the price posted at time of renewal, unless autorenew is turned off at least 24 hours before the end of the current period. You may manage your account and auto-renewal may be turned off by going to the User’s Account Settings after purchase. Account will be charged for renewal within 24 hours prior to the end of the then current subscription period. If you do not purchase any of the BrainPOP Products, your use of the BrainPOP App will be limited. You are solely responsible for turning off the auto-renewal for any Application or subscription and you will not be entitled to a refund of any amounts prepaid. BrainPOP reserves the right to suspend, discontinue, delete, modify, or remove any Content or functionality offered in the Application or the Company’s website from time to time, without prior notice, without reason or liability, based on Company’s sole discretion.