CINEBODY TERMS OF SERVICE
Version: August 2017
Welcome to the Cinebody site, operated by Super 6 LLC d/b/a Cinebody (“Cinebody,” “we,” “our” or “us”). Please read the following terms of service (“Terms”) carefully as they contain important legal terms and conditions that you accept when you access the Site, or purchase or use products or services from the Site, through any means (including mobile apps).
For purposes of these Terms, “Site” includes www.cinebody.com, the Platform (as defined in Part A), and any other website or portal managed by us through which we interact with you or promote our products or services. Also for purposes of these Terms, “you” and “your” mean you, individually as a natural person, and, if applicable, the organization on whose behalf you are accessing the Site, jointly and severally.
If you purchase any hardware or other tangible items (such as a Cinebody smartcase) from us, your purchase is governed by the then-current Cinebody terms of sale provided to you in connection with your purchase. If you download any Cinebody software (such as our mobile app), your access to and use of that software is also governed by the then-current Cinebody end user license agreement embedded in the software.
BY ACCESSING OR USING ANY PART OF THE SITE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF PART B, BELOW, WHICH APPLIES TO ALL USERS OF THE SITE INCLUDING CASUAL VISITORS. IF YOU CHOOSE TO REGISTER AN ACCOUNT THROUGH THE SITE (E.G., TO ACCESS THE PLATFORM), YOU AGREE TO BE BOUND BY THE TERMS SET FORTH IN PART A, IN ADDITION TO THE TERMS OF PART B.
PART A. TERMS APPLICABLE TO REGISTERED USERS OF THE SITE
Eligibility. You may only register on the Site if you agree to these Terms. You certify that you are of legal age to form a binding contract. If you are using the Site on behalf of an organization (such as your employer), you certify that you have the authority to do so and to bind that organization to these Terms. You agree to provide and maintain accurate, current and complete information about yourself as prompted by the Site’s registration process. If you do not meet or qualify for the requirements set forth in this section, please do not register for or use the Site.
Platform Overview. The Site includes a restricted-access platform portal allowing registered users to upload, share, edit and otherwise collaborate on video clips and other multimedia in connection with the promotion of the brand(s) associated with their account (the “Platform”). Use of the Platform is governed by this Part A (along with the rest of these Terms and the other agreements referenced in these Terms), including where your Platform user account is linked to and accessed from the Cinebody mobile app. A team of users is created for each brand promoted under the account. Currently, our small business account type allows for three brands/teams, our business account type allows for six brands/teams, and our Enterprise account type allows for multiple brands/teams.
Platform User Types. The Platform is designed for different user types having different roles and permissions on the Platform. Your user type is indicated on your registration form or other account registration correspondence. Full descriptions of each user type can be found in Cinebody’s marketing materials. Currently, to summarize, the account “ADMINS” are responsible for creating, paying for and managing an account on behalf of the organization they are supporting. For Enterprise accounts, the account ADMINS can designate individual team ADMINS who share all of the responsibilities set forth below except for payment administration and the creation of other teams. The “TEAMMATES” are invited to join a team by ADMINS and are the creative directors and primary editors of the brand content and footage for that team and its campaigns. Finally, “COLLABORATORS” are users (including members of the public) invited by ADMINS to submit Content only. Additional terms specific to each user type are set forth below.
Access Rights. Subject to your compliance with these Terms, including payment of any fees due on your account, Cinebody grants you a limited, non-exclusive and non-transferable right to use the Platform for purposes of promoting the brand(s) associated with the team to which you are assigned. Cinebody reserves all ownership rights, title and interest in and to all aspects of the Platform and Site (other than your Content) and any software made available in connection therewith. You may not modify the Platform infrastructure, create derivative works of the Platform, or reverse-engineer, reverse-compile, or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. You may use the Platform only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Platform after any termination or expiration of your agreement to these Terms for any reason.
Specific User Terms.
ADMINS. If you are an ADMIN, you understand and agree that you are entering into these Terms on behalf of your organization and are subjecting your organization to ultimate responsibility for all conduct, usage and fees arising under the account (including compliance with these Terms by its users), whether authorized or unauthorized. You hereby grant all users and Cinebody a worldwide, royalty-free, non-exclusive license and right to reproduce, publicly display and otherwise promote the brand(s) associated with your account in connection with their roles and permissions on the Platform, and you represent and warrant that you have all rights, title and authority necessary to grant this license. You are responsible for adding and removing TEAMMATES and COLLABORATORS (as well as other ADMINS, where applicable) to and from your team or account. You will serve as Cinebody’s primary point of contact for your assigned team (or the entire account, in the case of Enterprise organizational ADMINS). You are responsible for engaging TEAMMATES and COLLABORATORS to access your account and promoting the brand(s) associated therewith, although Cinebody may agree to help locate TEAMMATES on your behalf to add to your account. You may enter into separate written agreements with TEAMMATES and COLLABORATORS at your discretion (i.e., you may offer compensation or subject them to your company policies and procedures), but those separate agreements will have no force or effect against or on these Terms as they relate to Cinebody. You agree that your engagement of TEAMMATES and COLLABORATORS is non-exclusive, and that Cinebody or other brands may recruit and reuse TEAMMATES and COLLABORATORS for other campaigns.
CREATORS. If you are a CREATOR, you understand and agree that all footage and other Content (as defined below) that you upload to the Platform, or otherwise collect for the benefit of or using resources provided by, the organization associated with your account (the “Client”) is the sole property of the Client (or the owner of the brand supported by the Client, if agreed between such brand owner and the Client). You hereby irrevocably and unconditionally assign to the Client any and all rights, title and interest that you may have in your Content unless otherwise agreed in writing by the Client. You are prohibited from storing, processing, sharing or using the Content for any purpose not expressly authorized by the Client. Any and all goodwill and other derivative value manifesting in the Client’s brands that arise out of your activities hereunder shall inure to and be for the sole benefit of the Client. For clarity, the restrictions set forth in this section may not apply to the extent that you are an employee or contractor of the Client and are subject to a separate written agreement with the Client, or to Client company policies applicable to you, in which case that agreement or policy shall apply as between you and the Client and take precedence over these Terms.
COLLABORATOR. If you are a COLLABORATOR, you understand and agree that you only have the right to submit Content to the team to which you are assigned. You understand and agree that all Content that you upload to the Platform, or otherwise collect for the benefit of or using resources provided by, the Client are the sole property of the Client (or the owner of the brand supported by the Client, if agreed between such brand owner and the Client). You hereby irrevocably and unconditionally assign to the Client any and all rights, title and interest that you may have in your Content unless otherwise agreed in writing by the Client. You must promptly deliver to the Client all such Content upon request and are prohibited from storing, processing, sharing or using the Content for any purpose not expressly authorized by the Client. Any and all goodwill and other derivative value manifesting in the Client’s brands that arise out of your activities hereunder shall inure to and be for the sole benefit of the Client.
Content. Cinebody does not claim ownership rights in any footage, data, images or other materials or content that you make available or use in connection with the Platform (“Content”). Content is owned by the Client unless otherwise provided herein or agreed by the Client in writing. Notwithstanding the foregoing, you hereby grant to Cinebody a non-exclusive, worldwide, royalty-free and transferable right and license, with the right to sublicense through multiple levels, to reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use your Content in any medium or format, whether now known or hereafter discovered, in order to operate the Platform and for the promotional purposes specified in the following Article 8. You represent and warrant to Cinebody that you have all right, title and necessary in and to the Content for such purposes, including that you have not and will not collect or upload Content depicting (a) natural persons, without such persons’ permission or (b) third-party brands, logos or other proprietary information or intellectual property without the owner’s permission. AS BETWEEN YOU AND CINEBODY, YOU ARE SOLELY RESPONSIBLE FOR ALL DATA USAGE AND OTHER FEES IMPOSED ON YOU BY YOUR CELLULAR AND INTERNET SERVICE PROVIDERS AS A RESULT OF YOUR SUBMISSION OF CONTENT AND OTHER PLATFORM USAGE. You shall indemnify and hold Cinebody harmless for any violation of this Article 7.
Public Shoots. The Platform currently allows ADMINS to create public marketing campaigns (such as video shoots) and invite members of the public to participate in the campaign by registering for the Platform and inputting a specified access code. The deployment of public marketing campaigns does not relieve the organization associated with each account (e.g., the brand owner) of its responsibility for all usage, conduct and fees arising under its account. ADMINS are therefore strongly encouraged to carefully monitor and manage all such public campaign participation.
Submissions. Cinebody does not and cannot review all Content on the Platform and disclaims all responsibility for the Content. However, Cinebody reserves the right to remove, delete, move or edit any Content that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law or a third party’s rights (including intellectual property rights), or otherwise unacceptable.
Customer Accounts. The following sections apply primarily to the ADMINS responsible for managing Subscriptions.
Subscriptions. Cinebody currently offers Small Business and Enterprise subscription packages (subject to change), as well as a free (or “freemium”) version that Cinebody may offer from time-to-time and remove upon advance notice at its discretion. If you purchase a paid subscription to the Platform (“Subscription”), you will be charged the initial amount displayed at the time of checkout for the first order in the Subscription (‘Subscription Cost”). Currently, you may pay for Subscriptions via credit card, direct deposit or invoice. Subscriptions are payable immediately at checkout, either directly to Cinebody for manual processing or (if available) through the Platform for automated processing, and in advance of each pay period (e.g., monthly or annual) unless otherwise agreed in writing. Minimum Subscription term commitments apply to certain packages. Subscriptions auto-renew. Your account will be charged the Subscription Cost in advance of each pay period until you cancel the Subscription as set forth below (“Renewal Payment”). Depending on the billing option chosen by you at registration, the Renewal Payment will be charged to your account on or around the same day of the month as the initial payment was made for every pay period during the Subscription. Cinebody reserves the right to suspend all customer and user account activity in the event of payment default. Late payment accrues interest at a rate of 1% per month.
Pricing and Payment. Currently, pricing is based on (a) account type and (b) data storage fees. Details regarding each Subscription package can be found in Cinebody’s then-current marketing materials. Prices are subject to change at any time and, once such changes are posted on the Platform, will become effective at the beginning of the next billing cycle. You agree that Cinebody reserves the right to process your payment directly or through such other payment processing service as indicated on the Platform. Cinebody is not responsible for any charges or expenses (e.g., for overdrawn accounts, etc.) resulting from charges billed by Cinebody. All charges and fees paid are non-refundable unless otherwise agreed in advance in writing by Cinebody. Cinebody’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Cinebody’s income.
Data Storage Fees. Your Subscription Cost entitles you to a specified data storage quota. Additional fees apply to data storage in excess of your quota. We will use good-faith efforts to notify you when you are about to exceed your quota. In any event, YOU ARE RESPONSIBLE FOR, AND AUTHORIZE US TO CHARGE YOU FOR, ALL EXCESS DATA STORAGE FEES THAT ACCRUE UNDER YOUR ACCOUNT, IRRESPECTIVE OF WHETHER YOU AUTHORIZED THE USERS LINKED WITH YOUR ACCOUNT TO ACCRUE SUCH FEES. WE ARE ALSO NOT RESPONSIBLE FOR ANY DATA USAGE AND OTHER FEES IMPOSED ON YOU BY YOUR CELLULAR AND INTERNET SERVICE PROVIDERS AS A RESULT OF YOUR SUBMISSION OF CONTENT AND OTHER PLATFORM USAGE.
Cancellation of Subscriptions. In order to cancel a Subscription and no longer make a Renewal Payment (“Cancel”), you must notify Cinebody via email at [email protected] that you want to cancel your Subscription (“Email Cancellation”). Cancellations are effective as of the end of the month following the month in which the Subscription was canceled (or, in the case of annual Subscriptions, at the end of the annual term. No refunds of prepaid fees are given in connection with cancellations.
Indemnification. You agree to defend, indemnify and hold harmless Cinebody, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of our Site, including any use of our Site, content, services and products other than as expressly authorized in these terms or your use of any information obtained from our Site.
Monitoring of Content. You acknowledge, consent and agree that Cinebody may access, preserve and disclose your account information or Content if required to do so by law or in a good-faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Cinebody, its users or the public.
Suspension and Termination of Access. Cinebody reserves the right to suspend or terminate your account and use of the Platform, at any time, without notice, for the following reasons: (a) breach of these Terms, including policies or guidelines set forth by Cinebody; (b) Content collected or used without permission from third parties (such as persons recorded on video without their consent); (c) conduct that Cinebody believes is harmful to other users of the Site or the business of Cinebody or other third parties; or (d) Cinebody discontinues access to the Platform (temporarily or permanently) to its customers.
Disclaimer of Warranty. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. IN PARTICULAR, Cinebody MAKES NO WARRANTY THAT THE PLATFORM OR ITS CONTENT WILL BE ACCURATE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
PART B. TERMS APPLICABLE TO REGISTERED AND UNREGISTERED USERS OF THE SITE
Availability. Cinebody uses reasonable efforts to ensure that the Site is available 24 hours a day, 7 days a week. However, there will be occasions when access to the Site will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Cinebody. Cinebody will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of Cinebody. You agree that Cinebody shall not be liable to you for any modification, suspension or discontinuance of the Site (except that refunds may be issued in the event of Platform discontinuation). YOU UNDERSTAND AND AGREE THAT THE SITE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. You are responsible for obtaining access to the Site and acknowledge that such access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements (if any). In addition, you must provide and are responsible for all equipment necessary to access the Site.
Trademarks. All brand, product and service names used on the Site which identify Cinebody are proprietary marks of Cinebody. All brand, product and service names used on the Site which identify third parties and their products and services are proprietary marks of such third parties. Nothing on the Site shall be deemed to confer on any person any license or right on the part of Cinebody or any third party with respect to any such image, logo or name.
External Links. From time-to-time Cinebody may provide links that will take you to third party websites. These links are provided for your convenience only. If you decide to access linked websites you do so at your own risk. Cinebody does not endorse or take responsibility for the content on other website or the availability of other website and you agree that Cinebody is not liable for any loss or damage that you may suffer by using other websites.
Rules of Conduct.
The following Rules of Conduct apply to the Site. By using the Site, you agree that you will not distribute any submission that: (a) contains any threatening, harassing, obscene, pornographic or profane material or any other material that could give rise to any civil or criminal liability under applicable law; (b) contains any material that could infringe rights of privacy, publicity or copyrights without the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) whose likenesses are displayed in the material; (c) contains any material sent from an anonymous or false address; or (d) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity’s use or enjoyment of the Site.
We cannot and do not assure that other users are or will be complying with the foregoing rules of conduct or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance. Under no circumstances shall Cinebody be liable for the acts or omissions of any user.
Proprietary and Privacy Protection for Content on the Site. The information, Content, image files, software and materials on the Site may be protected by U.S. and international copyright and other intellectual property laws and by other applicable laws, including privacy laws. You understand that Cinebody is unable to provide you with permission to copy, display or distribute material for which you do not own the copyright or other intellectual property rights, except as may be expressly set forth on the Site. You may not copy or distribute such material without the written consent of the owner, and you are solely responsible for any copyright or other intellectual property law violations that you may incur as a result of your activities on the Site. Cinebody has the absolute right to terminate your account or exclude you from the Site if you use our Site to violate the intellectual property rights or other rights of third parties.
Claims of Copyright Infringement. We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us at [email protected].
Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL Cinebody (INCLUDING ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF Cinebody HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SITE, FROM ANY CHANGES TO THE SITE, OR THE SERVICES OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
THE TOTAL, CUMULATIVE LIABILITY OF Cinebody (INCLUDING ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS) TO YOU FOR ANY CLAIM, ACTION OR DEMAND ARISING FROM OR RELATING TO THESE TERMS OR USE OF THE SITE SHALL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IF YOU ARE NOT A PAYING CUSTOMER, YOUR SOLE AND EXCLUSIVE REMEDY IN CONNECTION WITH ANY CAUSE OF ACTION ARISING OUT OF THE SITE SHALL BE TO DISCONTINUE USE OF THE SITE. IT IS THE INTENTION OF YOU AND Cinebody THAT THIS PROVISION BE CONSTRUED BY A COURT/TRIBUNAL AS BEING THE BROADEST LIMITATION OF LIABILITY allowed under APPLICABLE LAW.
Dispute Resolution and Binding Arbitration. YOU AND Cinebody ARE AGREEING TO GIVE UP ANY RIGHTS TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION. (b) The arbitration will be administered by the American Arbitration Association (”AAA”) in accordance with the Consumer Arbitration Rules (the ”AAA Rules”) then in effect, except as modified by this Article 8. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section. The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the Agreement is void, voidable or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. (c) You may elect to pursue your claim in small-claims court rather than arbitration if you provide us with written notice of your intention do so within 60 days of your purchase. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy. (d) You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR Cinebody WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Applicable Law and Jurisdiction. Any question, claim or controversy arising out of or related to these Terms or the Site shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction.
Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Cinebody as a result of these Terms or use of the Site.
Enforcement. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
Force Majeure. Each party will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, Internet or telecommunication disruptions, failure of licensors or suppliers, material shortages or any other cause which is beyond its reasonable control.
Waiver. The failure of either party to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
Entire Agreement and Severability. These Terms, together with any applicable Cinebody order forms, terms of sale, license agreements or other Cinebody agreements that you enter into in connection with Cinebody products and services, constitute the entire agreement between you and Cinebody and govern your use of the Site, superseding any prior agreements between you and Cinebody. The failure of Cinebody to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, that provision shall be deemed severable and shall not affect the validity and enforceability of any other provision of these Terms which shall remain in full force and effect. In the case of inconsistencies between these Terms and any other information presented to you regarding the Site (e.g., promotional materials and mailers), these Terms will always govern and take precedence. Cinebody rejects the inclusion of any terms contained in any purchase order or other such ordering document provided by you, and such terms shall be deemed null and void.
Amendment of Terms. We reserve the right to make changes to our Site, policies and these Terms from time-to-time without notice. Your continued use of the Site constitutes acceptance of and the intent to be bound by any amendments, additions or modifications to these Terms. We will, however, use good-faith efforts to notify paying customers of any material changes forthcoming to the Platform.
Contact. Any questions, comments or suggestions, including any report of violation of these Terms should be sent to [email protected].