Terms of serviceLast Modified on September 28, 2012
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Your use of the Sites AND/OR THE SERVICE, or BY clicking “I ACCEPT” if presented with THIS TOU in a click-through format, signifies that you agree to THIS TOU and constitutes your binding acceptance of THIS TOU, including any modifications that Machinima makes from time to time.
ToU Updates. Machinima will revise this ToU as the Sites and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Sites and/or Service. By using the Sites and/or Service, you agree to the then-current version of this ToU as posted on the Sites. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Sites and/or Service.
Termination of Service. Machinima reserves the right to deny service to any person at Machinima’s sole and absolute discretion. The Sites and/or Service is offered with the understanding that Machinima may terminate any account registered to you and/or your access to the Sites and/or Service at any time, for any reason or no reason, including without limitation for any violation of this ToU. Machinima may stop offering and/or supporting the Sites and/or Service at any time.
Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.
Director’s Program and Unsolicited Idea Submissions.
Director’s Program. Machinima encourages submissions of creative and original shows or original ideas or concepts for potential shows (“Show Concepts”) through Machinima’s Director’s Program (the “Director’s Program”) for Machinima’s evaluation of your Show Concepts for potential inclusion on the Sites and/or other platforms. You acknowledge that while Machinima receives thousands of such Show Concepts through the Sites on a regular basis, very few Show Concepts are ever “green lit” by Machinima for inclusion in Machinima’s content network. We have no obligation to review, consider or use your Show Concepts under any circumstances. By submitting Show Concepts you represent and warrant that you own or have the right to utilize, disclose and grant the rights to the Show Concepts outlined in Section 6.3 hereof to Machinima.
Unsolicited Ideas. Machinima values your feedback on its services and products, but please do not submit any creative ideas, suggestions or materials, except for the Show Concepts. Neither Machinima nor any of its employees and/or contractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved business concepts or technologies, product enhancements, improvements to existing programs, marketing plans or names for new content (collectively "Unsolicited Ideas"). Please do not send your Unsolicited Ideas to Machinima or its employees and/or contractors. This policy is aimed at avoiding potential misunderstandings or disputes when Machinima' products or services might seem similar to Unsolicited Ideas that are submitted.
Rights to Show Concepts and Unsolicited Ideas. If you do submit your Show Concepts and/or Unsolicited Ideas to Machinima or to any of its employees and/or contractors, then you hereby acknowledge and agree that, from the time of uploading, transmission or dispatch, you grant Machinima and its designees a worldwide, perpetual, irrevocable, sublicenseable, transferable, assignable, and royalty-free right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import your Show Concepts and/or Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights and all other intellectual and proprietary rights related thereto, in any media now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Show Concepts and/or Unsolicited Ideas to others, without any compensation to you. You also waive any claim that any use by Machinima and/or its licensees of your Show Concepts and/or Unsolicited Ideas violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or other rights, and/or rights to credit for the material or ideas set for therein.
Restrictions and Conditions of Use.
Use of Sites and Service. Machinima permits you to view and use a single copy of the Sites solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Sites. Machinima reserves the right to add or remove information, content or Services from the Sites at any time at its sole discretion.
No Violation of Laws. You agree that you will not, in connection with your use of the Sites or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Sites, Service and/or Director’s Program any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
Misuse of Sites and/or Service. You may not connect to or use the Sites and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Sites and/or Service or otherwise attempt to disrupt the Sites and/or Service or any other person’s use of the Sites and/or Service; or (b) attempt to gain unauthorized access to the Sites, Service, accounts registered to other users, or the computer systems or networks connected to the Sites and/or Service. Furthermore, you may not use the Sites or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Sites and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding Machinima and/or the Service; (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (ix) generates artificial, automated or fraudulent views of pages or videos or ‘clicks’ on advertisements or offers.
No Commercial Uses. You agree that you will not use the Sites or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Sites or Service.
No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Sites or the Service.
Mobile Devices. The Sites and Service contains services and features that are available to or through certain mobile devices. Your carrier's normal rates and fees apply. We do not guarantee that any or all Services will work with or be accessible through all carriers or devices.
Links from the Sites. The Sites may contain links to websites and content platforms operated by other parties (e.g., YouTube, GoogleTV, Facebook, etc.). Machinima provides these links to other websites and content platforms as a convenience, and use of these websites and content platforms is at your own risk. The linked websites and content platforms are not under the control of Machinima, and Machinima is not responsible for the content available on the other websites and content platforms. Such links do not imply Machinima’s endorsement of information or material on any other website or content platform and Machinima disclaims all liability with regard to your access to and use of such linked websites and content platforms. Products offered on or in association with the Sites are provided through independent third party vendors, and you agree to look solely to such third party vendors, and not Machinima, for any issues related to such products.
Links to the Sites. Unless otherwise set forth in a written agreement between you and Machinima, you must adhere to Machinima’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with Machinima’s and/or its licensors’ names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with Machinima, (iii) when selected by a user, the link must display the Sites on full-screen and not within a “frame” on the linking Sites, and (iv) Machinima reserves the right to revoke its consent to the link at any time and in its sole discretion.
Social Networks. The Service includes features that operate in conjunction with certain third party social networking websites that you visit, including the use of such features to log into your account on the Sites (“Social Network Features”). While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for Machinima to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your actions in association with your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT MACHINIMA WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
Trademarks. Machinima and the Machinima logos are trademarks/service marks of Machinima. Unauthorized use of any Machinima trademark, service mark or logo may be a violation of federal and state trademark laws.
Copyright. The Sites and Service and the content made available through the Sites and the Service are protected by U.S. and international copyright laws. Except as authorized in this ToU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Sites or Service, or individual sections of the content, design or layout of the Sites without Machinima’s express prior written permission.
Copyright Agent. Machinima respects the intellectual property rights of others, and requires that the people who use the Sites and the Service do the same. Machinima maintains a policy of termination in appropriate circumstances of users who use the Sites and/or Service for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
Your address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Copyright Agent: Legal Department
8441 Santa Monica Blvd
West Hollywood, CA 90069
Tel: (323) 301-1529
Location. The Sites and the Service are operated by Machinima in the United States. Those who choose to access the Sites, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
Sites-Provided Postings. The Sites provide users with the ability to post messages on the Sites. Machinima is under no obligation to review any messages, information or content (“Postings”) posted on the Sites by users and assumes no responsibility or liability relating to any Postings. Notwithstanding the above, Machinima may from time to time monitor the Postings on the Sites and may remove any Postings at its sole discretion. You grant other users of the Sites permission to access, use, record, reproduce, distribute, publicly display, publicly perform, and prepare derivative works of your Postings in any medium (whether now known or later developed). We do not guarantee any confidentiality with respect to any Postings that you may submit, upload, post or otherwise provide to the Sites, and it is your responsibility to protect any rights that you may have in your Postings. Please also be aware that any personally identifiable information that you choose to include in your Postings for publication on the Sites will not be protected. If Machinima has provided you with any free or discounted product or other item of value (other than sales and discounts available to the general public), you agree to disclose the value received in your Postings in compliance with Section 5 of the Federal Trade Commission Act.
Submitted Content. Machinima does not claim ownership of any materials or Postings you make available through the Sites. At Machinima’s sole discretion, such materials and Postings may be included in the Service in whole or in part or in a modified form. With respect to such materials and Postings you submit or make available for inclusion on the Sites, you grant Machinima a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials and Postings or any part of such materials and Postings. You hereby represent, warrant and covenant that any materials or Postings you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section 13. You also grant us the right, but not the obligation, to use your name, likeness, and identity in connection with your materials and Postings. You voluntarily waive all moral rights you may have in your materials and Postings.
Children. The Sites and the Service are not directed toward children under 13 years of age nor does Machinima knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personally identifiable information to Machinima.
Disclaimer of WarrantIES.
THE SITES AND SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. MACHINIMA MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITES OR THE SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITES AND/OR THE SERVICE IS AT YOUR SOLE RISK. MACHINIMA DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITES AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITES OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITES OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, MACHINIMA, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIMS ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITES AND/OR SERVICE, EVEN IF MACHINIMA AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF MACHINIMA OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME THE CAUSE OF ACTION GIVING RISE TO LIABILITY AROSE OR $100, WHICHEVER AMOUNT IS LESS.
MACHINIMA WILL NOT BE RESPONSIBLE OR LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY LOSS, LIABILITY, EXPENSES OR DAMAGES INCURRED IN CONNECTION WITH THE SERVICE TO THE EXTENT CAUSED BY OR RESULTING FROM (1) YOUR ACTS, DEFAULTS OR OMISSIONS; (2) YOUR VIOLATION OF ANY OF ANY TERM, CONDITION, REPRESENTATION OR WARRANTY CONTAINED IN THIS TOU; OR (3) ACTS OR OMISSIONS OF THIRD PARTIES, INCLUDING THIRD PARTIES CONTRACTED BY MACHINIMA;.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of Machinima and its affiliates shall be limited to the fullest extent permitted by law.
Indemnification. You agree to indemnify, defend and hold Machinima and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys’ fees, resulting from or arising out of your use of the Sites and/or the Service or any breach by you of this ToU or any other policies that Machinima may issue for the Sites and/or Service from time to time.
Governing Law; Jurisdiction. This ToU is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 19 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Sites and/or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts.
Arbitration Procedures. You and Machinima agree that, except as provided in Section 19.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 19 and the JAMS Rules, the terms in this Section 19 will control and prevail.
Except as otherwise set forth in Section 19.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and Machinima may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND MACHINIMA WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Location. The arbitration will take place in your hometown area if you so notify Machinima in your notice of arbitration or within ten (10) days following receipt of Machinima’s arbitration notice. In the absence of a notice to conduct the arbitration in your hometown area, the arbitration will be conducted in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
Limitations. You and Machinima agree that any arbitration shall be limited to the Claim between Machinima and you individually. YOU AND MACHINIMA AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
Exceptions to Arbitration. You and Machinima agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (i) any Claim seeking to enforce or protect, or concerning the validity of, any of your or Machinima’s intellectual property rights; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
Severability. You and Machinima agree that if any portion this Section 19 is found illegal or unenforceable (except any portion of Section 19.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 19.4 is found to be illegal or unenforceable then neither you nor Machinima will elect to arbitrate any Claim falling within that portion of Section 19.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles, State of California, United States of America, and you and Machinima agree to submit to the personal jurisdiction of that court.
ToU Revisions. This ToU may only be revised in a writing signed by Machinima, or published by Machinima on the Sites.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Machinima as a result of this ToU or your use of the Service.
Assignment. Machinima may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without Machinima’s prior written consent, and any unauthorized assignment by you shall be null and void.
Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this ToU shall be in writing and addressed to: Machinima, Inc., 8441 Santa Monica Blvd, West Hollywood, CA 90069, ATTN: Legal Department.
Equitable Remedies. You hereby agree that Machinima would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Sites and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Sites and/or Service.