| Terms of Use |
SpotMixer Service and Website Terms and ConditionsLast modified April 23, 2008 One True Media's SpotMixer provides customers with an on-line based technology platform to self-produce, distribute and measure the effectiveness of Online Video Advertisements. (The SpotMixer service shall be collectively referred to as the "Service"). Before you continue using the SpotMixer website located at www.SpotMixer.com (the "Site") or use any of the One True Media products or services, it is important that you carefully review the terms and conditions set out below (the "Terms"). BY USING THE SITE, YOU AGREE TO THESE TERMS; IF YOU DO NOT AGREE, DO NOT USE THE SITE OR THE SERVICE. Specific pages on the Site may set out additional terms and conditions, all of which are incorporated by reference into these Terms. These Terms may be changed or updated at any time, but you can always find the most recent version here. In the case of inconsistencies between these Terms and information included in other materials (for example, promotional materials and mailers), these Terms will always control. We recommend that you periodically check this page to make sure you are up to date. By entering and using the Site, you indicate that you accept these Terms and that you agree to be bound by them. Acceptance of these Terms creates a binding contract between you and One True Media that you will use the Service only in a manner consistent with these Terms. If you have questions about these Terms, please contact us at Help@SpotMixer.com. Your use of the Site and the Service is entirely conditioned on and subject to your compliance with these Terms. If you do not agree with these Terms, do not access or use the Service. To use the Service we require that you be 13 years or older. By using our Service you agree to be bound by Section 1 of these Terms, which contains provisions applicable to all users of our Service. Our Service is offered on a trial basis at no charge and on a paid basis. If you choose to purchase the Service on a fee basis, you will be asked to check a box to indicate that you have also read and agree to be bound by the additional provisions set out in Section 2 of these Terms, in addition to being bound by the provisions of Section 1. Section 1: Applies to All Users of the Service 1. Operator This Service and the Site is owned and operated by One True Media, Inc., a company incorporated under the laws of the State of Delaware whose principal business address is One True Media, Inc., 955-A Charter St., Redwood City, CA 94063. One True Media is also referred to in these Terms as "we" and "us". 2. Purpose of the Service and License One True Media's SpotMixer provides customers with an on-line based technology platform to self-produce, distribute and measure the effectiveness of Online Video Advertisements. One True Media hereby grants you a limited, non-exclusive, non-transferable, worldwide right to use the Service, subject to the terms and conditions of this Agreement. In addition, One True Media hereby grants you a limited, non-exclusive, non-transferable, world wide right to use, solely as part of the Service, certain third party photographs, videos, music, graphics, tools and other materials that may be made available to you by One True Media as part of the Service (collectively the "Third Party Content"). You may not use the Third Party Content on a stand alone basis or for any purpose separate and apart from the Service. Use of certain Third Party Content may be subject to additional terms and conditions. All rights not expressly granted to you are reserved by One True Media and its licensors. You shall not license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Third Party Content in any way. 3. Privacy Issues The SpotMixer Privacy Policy can be found at www.SpotMixer.com/privacy. The terms and conditions of our privacy policy are incorporated into and considered part of these Terms. 4. Trademarks All brand, product, and service names used in this Service which identify SpotMixer, One True Media or third parties and their products and services are proprietary marks of One True Media and/or the relevant third parties. Nothing in this Service shall be deemed to confer on any person any license or right on the part of One True Media or any third party with respect to any such image, logo or name. 5. Availability One True Media uses reasonable endeavors to ensure that the Service is available 24 hours a day, 7 days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment or other circumstances that are beyond the control of One True Media. Reasonable steps will be taken by us to minimize such disruption where it is within the reasonable control of One True Media. From time to time, and without notice to you, One True Media may add or delete certain features or function from the Service we provide. You agree that One True Media shall not be liable to you for any modification, suspension or discontinuance of the Service. 6. Service User Creations a. The Service permits the user to submit video, audio, graphic images photographs, text and related data to create Video Advertisements (the information so submitted and the Video Advertisements so created shall be collectively referred to as the "Member Creations") b. User is permitted to create video advertisements for one business per account. Should one business have multiple locations, user is permitted to create video advertisements for up to two locations only. c. You shall be solely responsible for your Member Creations and the consequences of posting, linking or publishing them through use of the Service. You affirm, represent and/or warrant to One True Media that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize One True Media to use, all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Member Creations and theiruse in the manner contemplated by the Service; and (ii) you have the written consent, release, and /or permission of each and every identifiable individual person in the Member Creations to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Member Creations in the manner contemplated by the Service. You shall retain all of your ownership rights in your Member Creations. However, by submitting the Member Creations to One True Media, you hereby grant One True Media a limited worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and transferable license to use, reproduce, distribute (in any media formats and through any media channels), prepare derivative works of, display, perform and otherwise exploit the Member Creations as part as of the Service. d. In connection with Member Creations, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant One True Media all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage One True Media or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; or (iv) impersonate another person. One True Media does not endorse any Member Creations or any opinion, recommendation or advice expressed therein or any product or service offered for sale in the Member Creation, and One True Media expressly disclaims any and all liability in connection with Member Creations. If notified by a user or a content owner of an allegation that the Member Creations infringe upon or constitute a misuse of the rights held by such user or owner, One True Media may investigate the allegation and determine in good faith, and in its sole discretion, whether to remove or restrict access to the Media Creations, which it reserves the right to do at any time. e. The Service provides an "Embedded Player" feature, in which you can directly incorporate Member Creations on websites owned or operated by you or to those third party websites that you wish to link to your Member Creations. You understand that the Member Creations, whether or not linked or embedded into other web sites, are provided to You only on an as-available basis, and One True Media does not guarantee that their availability will be uninterrupted or error free. One True Media reserves the right to discontinue any aspect to the One True Media Website at any time, including discontinuing any linked or embedded Content either generally or in specific cases. f. You agree and acknowledge that One True Media has no obligation to retain the Member Creations, and may delete such Member Creations thirty(30) days after termination of the Service term. You also agree and acknowledge that One True Media has no obligation to provide access to or retain the Member Creations, and may delete such Member Creations, if you have materially breached this Agreement and such breach has not been cured within thirty (30) days of notice of such breach. 7. Basic Copyright Policy and Reporting of Violations One True Media does not control what content its users choose to store on the Site or to incorporate into Member Creations. Users of this Site and Service are solely responsible for complying with all international, federal and state laws applicable to such content, including copyright laws. One True Media respects copyright law and expects our users to do the same. Unauthorized copying, distribution, modification, public display, or public performance of copyrighted works is an infringement of the copyright holders' rights. As a condition to your use of the Service, or your use of the Site, you agree that you will not use the Site or Service to infringe the intellectual property rights of others in any way. One True Media will terminate access to the Site or use of the Service to any users who are infringers of the copyrights, or other intellectual property rights, of others or if One True Media believes that conduct of the user is harmful to the interests of One True Media. If you believe the copyright in your work has been violated through this Service, please contact One True Media's "Designated Copyright Agent" as set forth below. If you are a copyright owner, or authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, please report your notice of infringement by completing the following notice form and delivering it to the Designated Copyright Agent: NOTICE OF ALLEGED INFRINGEMENT OF COPYRIGHT b. Identification of the material that you claim is infringing (including sufficient information so that we may locate the material on the Site or Service, such as the URL where such material may be found on the Site): c. Your street or mailing address, telephone number, and, if available, email address. d. I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g. fair use). e. I hereby state that the above information in this Notice is accurate and, under penalty of perjury, that I am the copyright owner, or authorized to act on behalf of the owner of the copyright or of any exclusive right under the copyright. f. Electronic or physical signature of the copyright owner or of a person authorized to act on behalf of the owner of the copyright or of any exclusive right under the copyright: Full legal name:_______________________________ All claims of copyright infringement should be delivered in writing to One True Media's Designated Copyright Agent at the following contact information:
Designated Copyright Agent 8. External Links From time to time, One True Media may provide at the Site links that will take you to other, third party websites. These links are provided for your convenience. If you decide to access such linked websites you do so at your own risk. We do not endorse or take responsibility for the content on other websites or the availability of other websites and you agree that One True Media is not liable for any loss or damage that you may suffer by using other websites. 9. Amendment of the Terms We reserve the right to amend these Terms from time to time. 10. Termination of Access to the Service or the Agreement. One True Media may terminate this Agreement and the Service on thirty (30) days prior written notice in the event that you fail to cure the breach described in any such notice within thirty days of receipt. On the effective date of any such termination you shall immediately stop all use of the Site and the Service. In addition, One True Media may at any time terminate this Agreement and/or the Service for convenience on ninety (90) days prior written notice. In the event of any such termination for convenience, One True Media shall refund you a pro-rata portion of the pre-paid fees for the Service so terminated. 11. Claims, Controlling Law and Language Any action or claim hereunder must be brought, if at all, within one (1) year from the accrual of the cause of action or claim. The parties agree that any claims hereunder shall be subject to the state and federal laws of the state of California, and hereby consent to jurisdiction and venue in the courts of the Northern District of California located in San Francisco, California. Both parties expressly exclude the application of the United Nations Convention of Contracts for the International Sale of Goods, if applicable, to these Terms of Use. The parties hereto confirm that it is their wish that these Terms of Use, as well as other documents relating hereto, including notices, have been shall be written in the English language only. Les parties aux presentes confirment leur volonte que cette convention de même que tous les documentes y compris tout avis qui s'y attaché, soient rediges en langue anglaise. 12. Export Controls This Site and the Service use software and technology that may be subject to United States export controls and the export control regulations of Switzerland and the European Union. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. This Site and the Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. One True Media and its licensors make no representation that the Site or Service is appropriate or available for use in other locations. If you use the Site or Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. 13. Notices One True Media may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in One True Media's account information, or by written communication sent by first class mail or pre-paid post to your address on record in One True Media's account information. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to One True Media (such notice shall be deemed given when received by One True Media) at any time by any of the following: letter sent by confirmed facsimile to One True Media at the following fax number: (650) 298-8615; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to One True Media at the following address: One True Media, inc., 955-A Charter St., Redwood City, CA 94063 ; addressed to the attention of: Chief Financial Officer. 14. General These Terms constitute the entire agreement between One True Media and you with respect to your use of the Site and the Service. One True Media's failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision. If a court should find that one or more rights or provisions contained in these Terms is invalid, you agree that the remainder of the Terms shall be enforceable. 15. Comments If you have any comments or questions about these Terms, the Site or our Service, please contact us by email at Help@SpotMixer.com Section 2: Applies to Services Purchased on a Subscription Basis 16. Registration To purchase the Service you must be 13 years old or over. You agree that the information that you provide to us on registration and at all other times will be true, accurate, current and complete. You also agree that you will ensure that this information is kept accurate and up to date at all times. This is especially important with respect to your email address, since that is the primary way in which we will communicate with you about your account and your orders. 17. Password When you register as a Service user you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You must notify One True Media immediately of any unauthorized use of your password or if you believe that your password is no longer confidential. We reserve the right to require you to alter your password if we believe that your password is no longer secure. 18. Formation of a Binding Contract No contract will exist between you and One True Media for the supply of he Service unless and until One True Media accepts your order by a confirmatory e-mail, telephone conversation, or other appropriate means of communication. 19. Pricing, Billing and Payment The price for the Service shall be set forth on the SpotMixer on-line order form. All prices are stated in U.S. dollars and are valid until altered by us. Prices do not include any applicable sales, use or excise taxes that One True Media may be required to collect and remit. Any such taxes or charges shall be added by One True Media to the price for the Service. In the event that the published price for the Service was incorrect, One True Media will contact you to let you know the correct price and ask you whether you still wish One True Media to fulfill your order at the correct price. One True Media charges and collects in advance for use of the Service. You must provide One True Media with valid credit card or approved purchase order information as a condition to signing up for the Service. 20. Conduct You agree not to use the Service: a. for any unlawful purposes; b. to upload, post, order for print, email or otherwise transmit or communicate any material that is obscene, offensive, blasphemous, pornographic, unlawful, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, defamatory, libelous, vulgar, illegal or otherwise objectionable; c. to upload, post, order for print, email or otherwise transmit or communicate any material that you do not have a right to transmit or communicate under any contractual or fiduciary relationship or which infringes any copyright, trade mark, patent or other intellectual property right or any moral right of any party including, but not limited to One True Media; d. to harm minors in any way, including, but not limited to, content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; e. to forge headers or otherwise manipulate identifiers in order to disguise the origin of any Member Creations transmitted through the Service; and f. to upload, post, email or otherwise transmit any Member Creations which are likely to cause harm to One True Media or anyone else's computer systems, including but not limited to that which contains any virus, code, worm, data or other files or programs designed to damage or allow unauthorized access to the Service which may cause any defect, error, malfunction or corruption to the Service. You further agree that you shall not: a. interfere with or disrupt (or attempt to interfere with or disrupt) this Service or servers or networks connected to this Service, or to disobey any requirements, procedures, policies or regulations of networks connected to this Service; b. provide any information to One True Media that is false or misleading, that attempts to hide your identity or that you do not have the right to disclose; or c. use email from One True Media to create spam emails to be sent from us. 21. Monitoring of Content One True Media does not control the content of user's accounts or the Member Creations and does not have any obligation to monitor such content for any purpose. You acknowledge that you are solely responsible for all content and material you provide to the Service. 22. Suspension and Termination of Access and Use of Service You agree that One True Media may at any time without notice: a.. move or suspend any part of the Service; or b. refuse to fulfill any order, or any part of any order or terminate your account and delete any content stored in your account if, in One True Media's sole discretion, you fail to comply with any of these Terms or if a competent regulatory authority requires us to do so. 23. Automatic Renewals, Cancellation and Termination Your Service term will automatically renew for the same term duration, without prior notice to you, unless and until you cancel the Service prior to the end of such term. If you do not cancel the Service prior to the end of any such Service term, you will be charged the Service price for the next service term. The renewal charge for the Service will be equal to the price in effect during the prior term, unless One True Media has given you at least thirty (30) days prior written notice of a price increase, which shall be effective upon renewal and thereafter. You may terminate the Service for convenience at any time. In the event of any such termination for convenience, if you have purchased the Service on a multi-month plan, we will refund the unused remaining full months of your Service term minus the difference between the single month rate for the Service and the multi-month rate you agreed to pay. For example, if you purchased a three month Service plan for $207 ($69 per month) and you use the Service for one month, we will refund $138 (the remaining two months at $69 per month) minus $10 (the difference between your $69 per month rate and the single month rate of $79) or a total of $128. We do not refund for partial months; for the purpose of calculating any such refund a month shall consist of thirty (30) days. 24. Storage Policy One True Media provides online storage of images and video to users of the Service. Customers who use the pay version of the Service enjoy increased storage capacity and may continue to use this storage as long as they continue to pay the fees associated with such Service. For users of the free version of the Service, your content is subject to removal from the Site after a free period of 60 days from the date your account is initiated. To keep your content in your account beyond the free period, you need to purchase the paid version of the Service within the initial free period, otherwise you are subject to removal of your content. We may change this policy at any time, upon reasonable notice to you. 25. Limited Warranty and Limitation of Liability One True Media warrants to you that the Service shall substantially conform to the description of such Service found at the Site. If the Service fail to so conform to those descriptions of the Services, then One True shall make a commercially reasonable effort to correct the Services so that they so conform. If One True Media is not able to so correct the Service, then One True Media's sole obligation shall be to refund to you a pro-rata portion of any pre-paid fees for the Service. EXCEPT AS SET FORTH IN THE FIRST PARAGRAPH OF THIS SECTION 25, THE SERVICE, THE SITE, AND ALL OTHER RELATED ONE TRUE MEDIA PRODUCTS AND SERVICES ARE PROVIDED BY US "AS IS" WITHOUT ANY OTHER WARRANTIES WHATSOEVER. ALL OTHER EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. TO THE FULLEST EXTENT PERMITTED BY LAW, ONE TRUE MEDIA DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THIS SERVICE. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. YOU UNDERSTAND AND AGREE THAT THE SUBMISSION OF ANY DIGITAL OR ANALOG VIDEO OR PHOTO TO ONE TRUE MEDIA, AND THE DOWNLOAD OR UPLOAD OF ANY MATERIAL THROUGH THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR CONTENT OR IMAGE OR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT IN THE DOWNLOAD OR UPLOAD OF ANY MATERIAL. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UPS OF YOUR CONTENT. IN THE EVENT OF ANY LOSS OR, OR DAMAGE TO, YOUR CONTENT, ONE TRUE MEDIA SHALL BE LIABLE ONLY FOR THE REPLACEMENT OF A LIKE AMOUNT OF UNEXPOSED MEDIA. WE SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES RESULTING FROM THE USE OR PROVISION OF THE SERVICE, THE SITE AND ALL OTHER RELATED PRODUCTS AND SERVICES, EVEN IF ONE TRUE MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 26. Indemnification You agree to indemnify, defend and hold harmless us, our officers, directors, employees, agents, licensors, suppliers and any third-party information providers to the Service from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting: from any breach of these Terms; your access to and use of the Site; your use of the Service; and, your creation, use and distribution of the Member Creations. 27. Copyright Authorizations and Procedures In order for One True Media to make your Video Advertisements available as part of the Service, we need the rights to make use of Member Creations. Accordingly, as a condition of your use of the Service, you hereby grant One True Media a perpetual, universal, non-exclusive, royalty-free right to copy, display, perform, modify, transmit, make derivative works of and distribute your Member Creations, solely for the purpose of providing the Service. As a condition of your use of the Service, you represent and warrant to One True Media that you either own your Member Creations or have written permission from the owner of the rights or materials included in such Member Creations to use such Member Creations in conjunction with the Service. You are solely responsible for any copyright violations that may occur as a result of your use of the Service or accessing the Site. Copyright 2008. All rights reserved. |