Last Updated: May 17, 2017
1. Your Acceptance
BAlthough we may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version http://www.butterflyanimation.com/terms). Flat Black Films may, in its sole discretion, modify or revise these Terms of Service and policies at any time, and you agree to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits.
2. Account and Sign-in Information
APortions of the Platform may require you to submit information or sign-up for an account. Where required, you must fully complete any submission by providing us with your current, complete, truthful, and accurate information as prompted by the applicable forms. You agree that no information submitted will be false, fraudulent, deceptive, or misleading. Where required, Butterfly Animation may also assign you a username and password. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to notify Butterfly Animation immediately of any unauthorized use of your account or any other breach of security.
4. User Content
AYour ability to submit or transmit any information through the Platform, including but not limited to text, audio messages, videos, photos, images or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted. You understand that we cannot guarantee the absolute safety and security of any such User Content. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion. Butterfly Animation does not endorse and may not verify, monitor, or restrict any of its users or any User Content submitted. You agree that any User Content or any other information may be inaccurate, unsubstantiated or possibly even incorrect.
BWhen submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content and you have paid for or otherwise have permission to use any User Content submitted.
CWhen you submit any User Content to us, you grant Butterfly Animation, its partners, affiliates, users, representatives and assigns a non-exclusive, fully-paid, royalty-free, irrevocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, market, sub-license or use and reuse all or part of your User Content. It is important for you to grant us this license so that we may transmit your User Content to other users through our Platform and to share your User Content. Additionally, although you own all User Content submitted by you, we own all layouts, arrangement, metadata and images that are used to render your User Content through our Platform.
5. User Content Guidelines
User Content found on the Butterfly Animation Platform does not necessarily reflect the opinions of Butterfly Animation. We reserve the right but not the obligation to remove, delete, modify, screen, edit, or reinstate User Content from time to time at our sole discretion for any reason or no reason, and with or without notice to you. Please be aware that all User Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any User Content.
When submitting any User Content you agree to the following:
• You agree not to post any User Content that contains nudity, or sexual or explicit content;
•You agree not to post any User Content that depicts gratuitous violence, animal or child abuse, or encourages violence against others;
•You agree not to post any User Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
•You agree not to post any User Content that is considered spam;
•You agree to only post User Content that you own or have licensed and you shall not post any User Content that is in violation of a third parties’ intellectual property rights; and
•You agree not to post any User Content that may be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, or not up to community standards.
If you have violated any of our User Content Guidelines or if you we believe that any User Content may harm the Platform, your access to the Platform may be suspended or terminated.
6. Monitoring User Content
Please be aware that Butterfly Animation does not create or post any User Content. Butterfly Animation shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, including but not limited to any comment sections or feeds that may hereinafter be included as part of the Platform, to determine compliance with this Agreement and any operating rules established by us. Without limiting the foregoing, Butterfly Animation shall have the right, but not the obligation, to remove any User Content that Butterfly Animation in its sole discretion. For example, we may remove User Content if we believe it violates our content guidelines or if we believe that any User Content may harm us or our business interests. We have no obligation to retain or provide you with copies of any User Content. If you believe that any User Content is inappropriate or does not comply with this Agreement please contact us at email@example.com.
7. User Content Storage
Butterfly Animation may at its discretion provide reasonable storage space for any User Content submitted by you. However, in the event that you exceed any storage capacities provided by Butterfly Animation, in our sole discretion, we reserve the right to remove your excess User Content or we reserve the right to refuse storage of such User Content.
8. Usage Information
9. Platform Availability and Modification
Although we will attempt to provide continuous Platform availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. We make no uptime guarantees. We reserve the right to alter, modify, update, or remove our Platform at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal, or other reasons.
10. Your Conduct While Using The Platform
When accessing or using our Platform, you are solely responsible for your use and for any use of the Butterfly Animation Platform made using your account. You agree to abide by the following rules of conduct:
•You will not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
•You will not attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from the servers running the Platform;
•You will not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract or export data collected through the Platform;
•You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
•You agree not to use the Platform to stalk, harass, bully or harm another individual;
•You agree that you will not hold Butterfly Animation responsible for your use of the Platform;
•You agree not to violate any requirements, procedures, policies or regulations of networks connected to Butterfly Animation;
•You agree not to interfere with or disrupt the Platform;
•You agree to not violate any US, European or Japanese laws while using the Platform; and
•You agree not to use the Platform in any way that is: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Butterfly Animation reserves the right to suspend or terminate any account at any time without notice or explanation.
11. Platform Disclaimer
Please be aware that our Platform and any information found within it are offered “as-is.” The Platform and any services offered are not fail-safe and are not designed or intended for use in situations requiring fail-safe, error-free, or interruption-free performance which could lead to severe injury to business, people, property, or the environment (“Essential Activities”). These Essential Activities may include, without limitation, vital business operations, personal communications, or activities where absolutely accurate data or information is required. You expressly assume the risks of any damages resulting from the Essential Activities and you expressly release us from any liability related to such Essential Activities. You agree that any information may be inaccurate, unsubstantiated or possibly even incorrect. We cannot guarantee that using our Platform will result in any benefits or positive results for you. You agree to release us from any liability that we may have to in relation to your use of our Platform. Through the Platform you may be able to meet third parties, we ask you to exercise common sense and good judgment when doing so. You agree to release us from any liability related to any encounters with third parties that may occur through your use of the Platform. By using the Platform you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other third parties will be limited to a claim against the particular third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Butterfly Animation with respect to such actions or omissions.
12. Idea Submission
Butterfly Animation or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Butterfly Animation. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Butterfly Animation’ products might seem similar to ideas you submitted to Butterfly Animation. If, despite our request that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of Butterfly Animation, without any compensation to you; (2) Butterfly Animation may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Butterfly Animation to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
13. Platform Purchase and Third Party App Store Requirements
The Platform may be available for purchase via a third party app store, including the Nintendo eShop (collectively “Third Party App Store”). Where the Platform is available for purchase you agree to abide by all Third Party App Store rules. Additionally, any payment issues or refunds shall be managed by the Third Party App Store, please contact the Third Party App Store for any assistance required.
14. Intellectual Property
The name “Butterfly Animation,” the design of the Butterfly Animation Platform along with Butterfly Animation created text, writings, images, templates, scripts, graphics, interactive features and the trademarks, marks and logos contained therein ("Marks"), are owned by or licensed to Butterfly Animation. The Marks are subject to copyright and other intellectual property rights under US laws and international conventions. Butterfly Animation reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution of the Marks or anything else contained within the Platform unless we have given you express written permission.
15. Representations and Warranties
THE PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER BUTTERFLY ANIMATION, NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE PLATFORM OR ANY CONTENT; (B) ANY INFORMATION PROVIDED VIA THE PLATFORM; (C) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY ON THE PLATFORM; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO BUTTERFLY ANIMATION OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
BUTTERFLY ANIMATION DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. BUTTERFLY ANIMATION DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM ARE ACCURATE, COMPLETE, OR USEFUL. BUTTERFLY ANIMATION DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND BUTTERFLY ANIMATION SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
16. Limitation of Liability
IN NO EVENT SHALL BUTTERFLY ANIMATION, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (I) YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM, (III) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY, (V) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, (VI) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS, (VII) A THIRD PARTY’S USE OF YOUR CONTENT OR ANY INTERACTIONS WITH THIRD PARTIES FOUND THROUGH THE SITE, OR (VIII) ANY POTENTIAL OR ACTUAL LOSS OR DAMAGE TO PERSON OR PROPERTY THAT MAY OCCUR WHILE USING THE PLATFORM. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN JURISDICTIONS THAT ALLOW A LIMITATION ON LIABILTY, YOU AGREE THAT OUR LIABILITY TO YOU IS NO MORE THAN THE AMOUNT YOU PAID IN THE PAST SIX MONTHS FOR SERVICES OR ONE-HUNDRED US DOLLARS, WHICHEVER IS GREATER.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY BETWEEN JURISDICTIONS. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by Butterfly Animation’s negligence or that of any of its officers, employees or agents; (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future. The foregoing limitations on liability and any other limitations of liability set forth herein are not applicable to residents of New Jersey. With respect to residents of New Jersey, Butterfly Animation shall not be liable for any damages arising out of your access to or use of the Platform, unless such damages are the result of our negligent or reckless acts or omissions; provided, however, that we shall not be liable for consequential, indirect or punitive damages.
You agree to defend, indemnify and hold harmless Butterfly Animation, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
•your use of and access to the Butterfly Animation Platform;
•your violation of any term of this Agreement; and
•your purchase or sale of any User Content or any claim that your use of the Platform harmed a third party
This defense and indemnification obligation will survive this Agreement and your use of the Butterfly Animation Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If you believe that any copyrighted material owned by you has been infringed upon by someone using our Platform, please send us a message that contains:
•The name of the party whose copyright has been infringed, if different from your name.
•The name and description of the work that is being infringed.
•The location on our Platform of the infringing copy.
•A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
•A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Butterfly Animation, firstname.lastname@example.org.
Or by mail at:
Copyright Agent - Flat Black Films, Inc.
4204 Avenue H
Austin, TX 78751
In the event that you receive a notification from Butterfly Animation stating content posted by you has been subject to a copyright takedown notice, you may file a counter-notice. Your counter-notice must contain the following:
•Your name, address, email and physical or electronic signature.
•The notification reference number (if applicable).
•Identification of the material and its location before it was removed.
•A statement under penalty of perjury that the material was removed by mistake or misidentification.
•Your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), or your consent to the jurisdiction of a federal court in the district where your service provider is located (if you are not in the US).
•Your consent to accept service of process from the party who submitted the takedown notice.
Please be aware that we may not take any action regarding your counter-notice unless your notification strictly complies with the foregoing requirements. Please send this counter-notice to: email@example.com.
Or by mail at:
Copyright Agent - Flat Black Films, Inc.
4204 Avenue H
Austin, TX 78751
19. Age Compliance
Butterfly Animation and its Platform may only be used by persons 13 years and older. If you are under 13 please stop using our Platform and please do not submit any information to us.
20. Choice of Law
This Agreement shall be governed by the laws in force in the state of Texas without regard to principles of conflicts of law. The offer and acceptance of this contract is deemed to have occurred in Texas.
By using this Platform, you agree that: (1) any claim, dispute, or controversy you may have against us, Flat Black Films, Inc or the Platform arising out of, relating to, or connected in any way with this Agreement shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (2) the claim or dispute must be brought within one (1) year of the first date (does not apply to NJ residents) of the event giving rise to such action and the arbitration shall be held in Austin,TX, or at such other location as may be mutually agreed upon by you and Flat Black Films, Inc.; (3) the arbitrator shall apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (4) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or Flat Black Films, Inc’s individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (5) both parties will bear their own costs of representation and filing for the dispute; (6) where possible and allowed for under the AAA Rules and Procedures, Flat Black Films, Inc shall be entitled to appear electronically or telephonically for all proceedings; and (7) with the exception of subpart (4) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, 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, subpart (4) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither user nor Flat Black Films, Inc shall be entitled to arbitrate their dispute. For more information on AAA and its Rules and Procedures, users may visit the AAA website at http://www.adr.org. In the event that any portion of this arbitration provision is found to be unenforceable or void, both parties agree to settle any disputes arising out of this Agreement in a court of competent jurisdiction located in Travis County, TX.
22. Class Action
You and Butterfly Animation agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. The foregoing class action waiver does not apply to residents of New Jersey.
23. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with Butterfly Animation are deemed to conflict with each other’s operation, you agree that Butterfly Animation shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
All provisions of this Agreement, which by their nature should survive termination, shall survive termination, including, without limitation, dispute, arbitration, class action waivers, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform
29. Entire Agreement
You may terminate your use of the Platform at any time by simply uninstalling the Platform from tablet, or mobile device or by discontinuing access by cancelling your account. Please be aware that upon deletion of the Platform some portions of the service may become inaccessible immediately and some of your User Content may be deleted. You will not be eligible for any refunds upon your termination of the Platform. We may terminate your use of this Platform or this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated this Agreement or any additional agreements between you and Butterfly Animation; (3) if your account has remained inactive for an extended period of time; or (4) if we believe that any of your actions may legally harm Butterfly Animation or our business interests, at our sole decision or discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
31. Export Controls
The Platform and the underlying information and technology may not be downloaded or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. or Canada has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
The Platform is not affiliated or associated with the Nintendo or any Nintendo owned companies. Where displayed, the Nintendo name, is used for descriptive purposes only, the Nintendo name and images are owned by Nintendo and its respective licensors, all rights are reserved.
33. Choice of Law
The communications between you and Butterfly Animation use electronic means, whether you visit the Platform or send Butterfly Animation e-mails, or whether Butterfly Animation posts notices on the Platform or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Butterfly Animation in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Butterfly Animation provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.