Terms of Service
The terms “we,” “us” and “our” refer to Brainiac® Kids and any of its affiliated companies as appropriate to the context. “You” refers to any person accessing and/or using the Site.
From time to time we may update this Site and these Terms. Your use of this Site after we post any changes to these Terms constitutes your agreement to those changes. You agree to review these Terms periodically to ensure that you are familiar with the most recent version. Brainiac® Kids may, in its sole discretion, and at any time, discontinue this Site or any part thereof, with or without notice, or may prevent your use of this Site with or without notice to you. You agree that you do not have any rights in this Site and that Brainiac® Kids will have no liability to you if this Site is discontinued or your ability to access the Site or any content you may have posted on the Site is terminated.
Brainiac® Kids Content
Content on this Site that is provided by Brainiac® Kids or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“Brainiac® Kids Content”) is the property of Brainiac® Kids and its licensors, and is protected under trademark, copyright, and other intellectual property laws. Nothing contained on this Site should be construed as granting any license or right to download or use any Brainiac® Kids Content.
You agree not to download, display or use any Brainiac® Kids Content located on the Site for any purpose, in connection with products or services that are not those of Brainiac® Kids, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Brainiac® Kids and/or its licensors, that dilutes the strength of Brainiac® Kids or its licensor’s property, or that otherwise infringes Brainiac® Kids's or its licensors’ intellectual property rights. You further agree to in no other way misuse any Brainiac® Kids that appears on this Site.
Use of the Site and Posting Policy
The following requirements apply to your use of the Site: (a) you will not use any electronic communication feature of the Site for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful, all as determined by Brainiac® Kids in its sole and absolute discretion; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not collect or store personal data about other users; (d) you will not use the Site for any commercial purpose not expressly approved by Brainiac® Kids in writing; (e) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; (f) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
User Code of Conduct
From time to time on certain areas of our Site you may be able to submit photos, written posts and certain other materials (“User Content”). User Content does not include Submitted Ideas (defined below). By using these features, you agree that you will not post any content that is unlawful, harmful, tortious, defamatory, libelous, obscene, invasive of the privacy of another person, threatening, harassing, abusive, hateful, racist, infringing, pornographic, violent or otherwise objectionable or inappropriate as determined solely by Brainiac® Kids; that you will not post any content that contains personal information about any individual, violates the privacy/publicity of any other individual or entity, or anything that you are under a contractual obligation to keep private or confidential; that you will not impersonate any person or organization, including without limitation, the personnel of Brainiac® Kids, or misrepresent an affiliation with another person or organization; you will not post any content that contains viruses, corrupted files, or any other similar software or programs that may adversely affect the operation of the Site, or feature of the Site (the “Posting Policy”). You further understand and agree that you have no ownership rights in any account you may have with us or other access to the Site or features therein. Brainiac® Kids may cancel your account and delete all User Content associated with your account at any time, and without notice, if Brainiac® Kids deems that you have violated these Terms, the law, or for any other reason. Brainiac® Kids assumes no liability for any information removed from our Site, and reserves the right to permanently restrict access to the Site or a user account. For greater certainty, and without limiting the effect of the foregoing, Brainiac® Kids reserves the right, in its sole and absolute discretion, to modify, edit or remove any User Content, or to request a user to modify or edit his or her User Content, if a complaint or notice of allegedly infringing materials is received with respect to the User Content, or for any other reason.
By displaying, publishing, or otherwise posting any User Content on or through the Site, you hereby irrevocably grant to Brainiac® Kids a non-exclusive, fully sub-licensable, non-revocable, worldwide, fully-paid, royalty free license to use, modify, publicly perform, publicly display, broadcast, publish, reproduce, and distribute such User Content, my name, image, likeness, statements, and endorsement, as depicted in the User Content, in any and all media now known or hereinafter developed without the requirement to make payment to you or to any third party or the need to seek your or any third party permission. Further, you waive all moral rights in and to all User Content that you post on, upload or otherwise submit to or through, the Site in favor of Brainiac® Kids. This license and waiver of rights includes the right to host, index, cache, distribute, and tag any User Content, as well as the right to sublicense User Content to third parties, including other users, for use on other media or platforms known or hereinafter developed, such as for use on mobile phones, in video or music software computer programs. You continue to retain all ownership rights you hold in your User Content, and you retain any right to use your User Content in any way you choose, subject to these Terms and the license described herein. You represent and warrant that you own all of the User Content submitted, displayed, published or posted by you on the Site and otherwise have the right to grant the license set forth herein, and the displaying, publishing or posting of any content you submit, and our use thereof does not and will not violate the privacy rights, publicity rights, copyrights, trademark rights, patents, contract rights or any other intellectual property rights or other rights of any person or entity. Brainiac® Kids reserves the right, but not the obligation, to monitor any and all User Content or other materials uploaded or posted to the Site, and reserves the right to remove or to refuse to post anything that we, in our sole discretion, view to be in violation of these Terms, the law, or is otherwise inappropriate. Brainiac® Kids does not necessarily, however, monitor any materials posted, transmitted, or communicated to or within the Site. Since User Content posted to this Site may be publicly available, you acknowledge that you do not have any expectation of privacy in relation to your User Content.
You agree to indemnify and hold Brainiac® Kids, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of these Terms, including the above Posting Policy, or any violations thereof by your dependents or which arises from the use of any content including User Content that you submitted, posted, or otherwise provided to Brainiac® Kids or this Site.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) a description of where the material that you claim is infringing is located, with enough detail that we may find it;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
(f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident. Our copyright agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:
We suggest that you consult your legal advisor before filing a notice with our copyright agent.
We may, in appropriate circumstances and in our sole discretion, prohibit users who may be repeat infringers from accessing the Site or making submissions.
Accounts, Passwords, and Security Certain areas of the Site require registration or otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site, or any features at all.
If the Site requires you to create an account or otherwise submit information, you must complete the specified process by providing us with current, complete, and accurate information as requested by the applicable registration form. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. During the registration process, you will be asked to enter your name and valid e-mail address and choose a password. It is entirely your responsibility to maintain the confidentiality of your password and account. Additionally, you are entirely responsible for any and all activities that occur under your account. You agree to notify Brainiac® Kids immediately of any unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. Brainiac® Kids is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge, and is not responsible for any delay in shutting down your account after you have reported a breach of security to us.
Representations and Limitations of Liability To the extent permitted by the applicable law, KIND makes no representations about the reliability of the features of this Site, the Brainiac® Kids Content, User Content, or any other Site feature, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. Brainiac® Kids makes no representations regarding the amount of time that any Brainiac® Kids Content or User Content will be preserved.
Brainiac® Kids does not endorse, verify, evaluate or guarantee any information provided by users and nothing shall be considered as an endorsement, verification or guarantee of any User Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which contain or suggest an endorsement by Brainiac® Kids without the prior review and written approval of Brainiac® Kids.
THIS SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THIS SITE, OR ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS (INCLUDING SOFTWARE) THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL KIND (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS OR PROGRAMMERS) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THIS SITE OR ANY PRODUCTS OR SERVICES AVAILABLE THEREON, NOR SHALL KIND BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND KIND’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE’S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL KIND OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF KIND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU DOWNLOAD ALL MATERIAL AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES; AS A RESULT, THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN WHOLE OR IN PART, AND THE ABOVE LIMITATIONS SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENTS ARE THE RESULT OF OUR NEGLIGENT, FRAUDULENT OR RECKLESS ACTS(S) OR INTENTIONAL MISCONDUCT.
ANY PRODUCTS AND/OR SERVICES DESCRIBED ON THE SITE ARE OFFERED IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE SITE IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
Third Party Websites
Jurisdiction; United States Only
Mandatory Arbitration on Non-Class Basis
In resolving a claim for arbitration, the arbitrator shall apply California law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class, representative, or collective basis, or as a private attorney general on behalf of other persons similarly situated, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate the dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. Disputes regarding the arbitrability of any claim shall be resolved by the arbitrator.
THE ARBITRATION OF DISPUTES PURSUANT TO THIS SECTION SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU MAY NOT BRING ANY CLAIM AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHER SIMILARLY SITUATED PERSONS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED.
BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL. DO NOT USE THIS SITE IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.
Both you and Brainiac® Kids acknowledge and agree that no partnership is formed and neither of you nor Brainiac® Kids has the power or the authority to obligate or bind the other.
The failure of Brainiac® Kids to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state, provincial/territorial, or local governmental authorities or for any other reason beyond the reasonable control of Brainiac® Kids, shall not be deemed a breach of these Terms.
If Brainiac® Kids fails to act with respect to your breach or anyone else’s breach on any occasion, Brainiac® Kids is not waiving its right to act with respect to future or similar breaches.
These Terms constitute a binding agreement between you and Brainiac® Kids, and are accepted by you upon your use of the Site or your account. These Terms constitute the entire agreement between you and Brainiac® Kids regarding the use of the Site and your account. By using the Site you represent that you are the age of majority in your jurisdiction, are capable of entering into a binding agreement, and that you agree to be bound by these Terms.