Filmakr Labs LLC (“Filmakr Labs,” “Filmakr,” “we,” “us,” or “our”) welcomes you. We appreciate that you have decided to access and use the Filmakr website (the “Website”) and/or our mobile app (the “App,” and collectively with the Website, the “Services”).
1. AGE RESTRICTION
The Services are only available for individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it.
2. DESCRIPTION OF SERVICES
We provide visitors to the Website (“Visitors”) and registered users of the Services (“Users”) with access to the Services as described in this Agreement.
Visitors are people who interact with our website. Visitors can (a) view all publicly-accessible content, and (b) e-mail us. Users. Login is required for all Users. Users can do all the things that Visitors can do, and may: (i) participate in our promotional programs; (ii) sign up for alerts and other notifications; and (iii) edit, save, and share their videos (“User Content”) on third-party platforms such as Facebook, YouTube, Vimeo, Instagram, Dropbox, Twitter, Tumblr, and Vine.
We are under no obligation to accept any individual as a User, and may accept or reject any User in our sole and complete discretion.
3. COMMUNITY GUIDELINES
Our community, like any community, functions best when its users follow a few simple rules. By accessing and/or using the Services, you hereby agree to comply with these community guidelines the (“Guidelines”) and that:
Whenever you’re using the Services, you will comply at all times with our Acceptable Use Policy, which is attached here as Schedule A;
You will not use the Services for any unlawful purpose, including, without limitation, advertising, transmitting, or otherwise making available ponzi schemes, pyramid schemes, fraudulently charging credit cards, or pirating content;
You will not post, upload, or send any false or misleading information through the Services;
You will not use the Services to engage in any pyramid or other multi-tiered marketing scheme, including, without limitation, raising money; advertising or promotion;
You will not access or use the Services to collect any market research for a competing business;
You will not “stalk” or otherwise harass another;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Services;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Services, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file; and
You will not interfere with or attempt to interrupt the proper operation of the Services through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Services through hacking, password or data mining, or any other means.
You will not use the Services for any malicious activity, as determined by Filmakr in its sole and absolute discretion.
Please let us know about inappropriate behavior. If you find something that violates our Guidelines, please flag it through the functionality on the Services, and we’ll review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Services (or any portion of them) and/or to remove any User Content without notice.
4. SIGN-IN NAME; USERNAME; PASSWORD; UNIQUE IDENTIFIERS
If a User does not log in to the Services using a third-party login provider (e.g., Facebook or Twitter), such User will be prompted to create an account, which includes a sign-in name (“Sign-In Name”), a username (“Username”), a password (“Password”), a valid e-mail address (“User E-mail”), and perhaps certain additional information that will assist in authenticating the User’s identity when he or she logs-in in the future (“Unique Identifiers”). When creating the account, Users must provide true, accurate, current, and complete information. Users are solely responsible for the confidentiality and use of their Sign-In Names, Usernames, Passwords, User E-mail, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Services. A User will promptly inform us of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. We reserve the right to delete or change Users’ Passwords, Sign-In Names, Usernames or Unique Identifiers at any time and for any reason. Filmakr will not be liable for any loss or damage caused by any unauthorized use of Users’ accounts.
5. INTELLECTUAL PROPERTY
The Services contain material, such as software, text, graphics, images, User Content from other users, and other material provided by or on behalf of Filmakr (collectively, the “Content”). The Content presented to you as part of the Services, including, but not limited to, advertisements, may be owned by us or by third parties and is protected by intellectual property rights under both United States and foreign laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. The trademarks, service marks, and logos of Filmakr (the “Filmakr Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Filmakr. Other company, product, and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Filmakr Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. All goodwill generated from the use of the Filmakr Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means, including but not limited to the use of framing or mirrors.
6. COMMUNICATIONS WITH US
Although we encourage you to communicate with us, we do not want you to, and you should not, provide us any content that contains confidential information. With respect to all e-mails or other communications you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, improving the Services and the development, production, and marketing of products and services that incorporate such information, without compensation to you.
7. USER CONTENT; PUBLICITY
As noted above, the Services provide Users the ability to share User Content. You expressly acknowledge and agree that once you share your User Content, it will be accessible by others and that there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make publicly available. YOU, AND NOT FILMAKR LABS, ARE ENTIRELY RESPONSIBLE FOR ALL THE USER CONTENT THAT YOU SHARE VIA THE SERVICES.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby irrevocably grant us and our sublicensees and assignees a non-exclusive, transferable, perpetual, royalty-free, freely sublicensable (through multiple tiers) license to: (i) modify, compile, combine with other content, copy, record, synchronize, transmit, translate, format, distribute, publicly display, publicly perform, and otherwise use any and all of your User Content, your Sign-In Name, your profile picture, and all intellectual property and moral rights therein throughout the universe, in each case, by or in any means, methods, media, or technology now known or hereafter devised on, through, or in connection with the Services; and (ii) use your name, Sign-In Name, and profile picture to advertise, market, and promote Filmakr and the Services by any means, methods, media, or technology now known or hereafter devised.
If you submit User Content to us, each such submission constitutes a representation and warranty that such User Content is your original creation (or that you otherwise have the right to provide the User Content), that you have the rights necessary to grant the license to the User Content under this Section (including the permissions of anyone depicted in your User Content and the appropriate music licenses), and that it and its use by Filmakr and its content partners as permitted by this Agreement does not and will not infringe or misappropriate the intellectual property, moral rights, privacy rights, or publicity rights of any person or contain any libelous, defamatory, or obscene material or content that violates our Guidelines.
8. NO WARRANTIES/LIMITATION OF LIABILITY
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. FILMAKR SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE SERVICES FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SERVICES AT YOUR OWN RISK. WE DO NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR-FREE OR THAT THEY ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS.
IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9. EXTERNAL SITES
The Services may contain links to third-party websites or may otherwise allow you to gain access to third-party websites (“External Sites”). These links and/or access to such External Sites are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
You agree to defend, indemnify, and hold the Filmakr Labs LLC and Filmakr Parties harmless from and against any claims, actions, suits, proceedings, or demands (collectively, “Claims”), including, without limitation, reasonable legal and accounting fees, arising or resulting from your User Content, your breach of this Agreement, and/or your access to, use, or misuse of the Services. We shall provide notice to you of any such Claim and shall assist you, at your expense, in defending any such Claim. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
11. COMPLIANCE WITH APPLICABLE LAWS
The Services are based in the United States. We make no claims concerning whether the Services or the Content may be used or are appropriate for use outside of the United States. If you access the Services from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
12. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
13. DIGITAL MILLENNIUM COPYRIGHT ACT
Filmakr respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any content deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
Filmakr Labs LLC
230 East 18th Street, #5E
New York, NY 10003
If you believe that your work has been copied on the Services in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including: (i) a description of the copyrighted work that has been infringed and the specific location where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
14. COMMUNICATIONS DECENCY ACT NOTICE
Filmakr is a provider of “interactive computer services” as defined under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation, libel, product disparagement, and other claims arising out of any User Content is limited as described therein. We are not responsible for any User Content. We neither warrant the accuracy of the User Content or exercise any editorial control over User Content, nor do we assume any legal obligation for editorial control of User Content or liability in connection with User Content, including any responsibility or liability for investigating or verifying the accuracy of any User Content.
This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of law provisions. You expressly agree: (i) to submit to the exclusive personal jurisdiction of the state and federal courts sitting in New York, New York; and (ii) that the Services shall be deemed passive that do not give rise to personal jurisdiction over Filmakr, either specific or general, in jurisdictions other than New York State. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE OR THE SERVICES MUST COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications with Us,” “User Content; Publicity,” “No Warranties/Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” and “Miscellaneous.”
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. This Agreement, including Schedule A, constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. We may change this Agreement from time to time, and will post any changes on the Services as soon as they go into effect. By accessing or using the Services after we make any such changes to this Agreement, you are deemed to have accepted such changes. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
Schedule A – Filmakr’s Acceptable Use Policy (“AUP”)
Filmakr has developed this AUP, which supplements and explains certain terms in the Agreement and is intended as a guide to your rights and obligations when utilizing the Services. This AUP will be revised from time to time, without any obligation to notify you of the same. Your use of the Services after changes to this AUP are posted on the Website shall constitute your acceptance of any new or additional terms.
Services shall constitute your acceptance of any new or additional terms.
When you disseminate materials through via the Services, you must keep in mind that Filmakr does not review, edit, censor, or take responsibility for any materials you may create. When you place materials on the Internet, you have the same liability as other authors for copyright infringement, defamation, and other harmful speech. Also, because the materials you create may reach a large number of people, your postings may affect other subscribers and may harm our goodwill, business reputation, and operations. For these reasons, you violate this AUP and the Agreement when you engage in or facilitate the following prohibited activities:
1. Intellectual Property Violations. Using the Services to engage in any activity that infringes or misappropriates the intellectual property rights of others, including copyrights, trademarks, service marks, trade secrets, patents, or privacy or publicity rights held by individuals, corporations, or other entities. We are required by law to remove or block access to User Content upon receipt of a proper notice of copyright infringement. It is also our policy to terminate the privileges of Users who violate copyright laws.
2. Objectionable Content. Using the Services to view, advertise, transmit, store, post, display, or otherwise make available Objectionable Content, which for purposes herein means content containing:
• Child pornography. In fact, we are required by law to notify law enforcement agencies when we become aware of the presence of child pornography on or being transmitted through the Services;
• Nudity/explicit sexual acts;
• Hate speech or overt bigotry;
• References to buying/selling anything illegal;
• Anything libelous, defamatory, or threatening; or
• Personal details about someone’s identity (credit cards, driver’s license, etc.)
3. Distribution of Internet Viruses, Worms, Trojan Horses, or Other Destructive Activities. Using the Services to distribute information regarding the creation of and sending Internet viruses, worms, Trojan horses, pinging, flooding, mailbombing, or denial of service attacks.
4. Other Activities. Using the Services to engage in activities, whether lawful or unlawful, that Filmakr determines to be harmful to our Visitors, Users, operations, reputation, goodwill, or customer relations.
As we have pointed out, the responsibility for avoiding the harmful activities just described rests primarily with you. We typically do not monitor the activities of our Users to ensure that they comply with the Agreement, this AUP, or applicable law. However, if we become aware of harmful activities, we may take any action to stop the harmful activity, including, but not limited to, removing User Content, implementing screening software designed to block offending transmissions, denying you access to the Services, terminating your account, or taking any other action that we deem appropriate.
We are also concerned with the privacy of on-line communications and websites. In general, the Internet is neither more nor less secure than other means of communication, including mail, facsimile, and voice telephone service, all of which can be intercepted and otherwise compromised. As a matter of prudence, however, we urge you to assume that all of your on-line communications are insecure. We cannot take any responsibility for the security of information transmitted over our networks, equipment, or facilities.
We hope this AUP is helpful in clarifying your obligations as responsible members of the Internet. Any complaints about a User’s violation of this AUP should be sent to firstname.lastname@example.org.
Effective as of January 2015
The Information We Collect
1. Personal Information
When you sign up to become a User, enter any promotion, or sign up for any of our alerts, you will be required to provide us with personal information about yourself, which may include your name, e-mail address, and phone number (collectively, “Personal Information”). We do not collect any Personal Information from you when you use the Services unless you provide us with the Personal Information voluntarily or authorize us to access it. In addition, if you log in to use the Services through one of your social networking accounts, such as Facebook, YouTube, Vimeo, Dropbox, Twitter, Tumblr, and Vine, such account will automatically provide us with, or authorize us to access, some Personal Information about you, such as your first and last name, username, profile pictures, unique identifiers and access tokens, e-mail address, and phone numbers.
2. Geolocational Information
Certain features and functionalities of the Services are based on your location. In order to provide these features and functionalities to you, we may, with your permission, automatically collect geolocational information from your mobile device or wireless carrier and/or certain third-party service providers. Such information is collectively called the “Geolocational Information.” Collection of such Geolocational Information occurs only when the Services are running on your mobile device.
3. Other Information
In addition to the Personal Information and the Geolocational Information, we may collect additional information (collectively, the “Other Information”). Such Other Information may include:From You.
1. Additional information about yourself that you voluntarily provide to us, such as hobbies, personal interests, gender, product and service preferences, and other information that does not identify you personally.
2. From Your Activity. Information that we automatically collect when you use the Services, including, without limitation:
• When you visit the Website, we may collect your IP address, browser type and language, referring and exit pages and URLs, date and time, amount of time spent on particular pages, sections of the Website visited, etc.
• When you use the Services, we may collect information regarding your activity occurring via the Services.
• About Your Device. We may collect information about your mobile device, including universally unique ID (“UUID”), MAC address, operating system and version (e.g., iOS, Android or Windows), carrier and country location, hardware and processor information (storage, chip speed, camera resolution, NFC enabled), and network type (WiFi, 3G, 4G, LTE).
• Cookies are small packets of data that a website stores on your computer’s or mobile device’s hard drive so that your computer will “remember” information about your visit. We may use both session cookies (which expire once you close your web browser) and persistent cookies (which stay on your computer until you delete them) to help us collect Other Information and to enhance your experience using the Services. If you do not want us to place a cookie on your hard drive, you may be able to turn that feature off on your computer or mobile device. Please consult your Internet browser’s documentation for information on how to do this and how to delete persistent cookies. However, if you decide not to accept cookies from us, the Services may not function properly.
The Information Collected by or Through Third-Party Advertising Companies
How We Use and Share the Information
We use the Personal Information, the Geolocational Information, and the Other Information (collectively, the “Information”) to provide and improve the Services; solicit your feedback; inform you about our products and services and those of our third-party marketing partners; and administer our promotional programs. Also, we may use and share the Information as described below.
In order to administer our promotional programs, we may share your Information with our third-party promotional and marketing partners, including, without limitation, businesses participating in our various programs.
We may from time to time share Information with other companies who may provide you information about the products and services they offer. However, to the extent required by law, you will be given the opportunity to opt-out of such sharing.
In an ongoing effort to better understand our Visitors, Users, and Services, we might analyze the Other Information and the Geolocational Information in aggregate form in order to operate, maintain, manage, and improve the Services. This aggregate information does not identify you personally. We may share this aggregate data with our affiliates, agents, and business partners. We may also disclose aggregated user statistics in order to describe our products and Services to current and prospective business partners and to other third parties for other lawful purposes.
We may employ other companies and individuals to perform functions on our behalf. Examples may include providing network services, information technology support and customer service. These other companies will have access to the Information only as necessary to perform their functions and to the extent permitted by law.
With your permission, third-party applications or services may access your Personal Information. We use standard OAuth (open authorization) to enable you to give permission to share your Personal Information with other websites and services, such as Facebook, YouTube, Vimeo, Twitter, Tumblr, and Vine (e.g., when you agree to a pop-up requesting you to allow another application to access your account information). We also use OAuth to allow us to share information about you that is stored by us without sharing your security credentials.
We may share some or all of your Information with any of our parent companies, subsidiaries, joint ventures, or other companies under common control with us.
As we develop our businesses, we might sell or buy businesses or assets. In the event of a corporate sale, merger, reorganization, sale of assets, dissolution, or similar event, the Information may be part of the transferred assets.
To the extent permitted by law, we may also disclose Information when required by law, court order, or other government or law enforcement authority or regulatory agency, or whenever we believe that disclosing such information is necessary or advisable, for example, to protect the rights, property, or safety of Filmakr or others.
How We Protect Your Information
We take commercially reasonable steps to protect the Information from loss, misuse, and unauthorized access, disclosure, alteration, or destruction. Please understand, however, that no security system is impenetrable. We cannot guarantee the security of our databases or the databases of the third parties with which we may share such information, nor can we guarantee that the information you supply will not be intercepted while being transmitted over the Internet. In particular, e-mail sent to us may not be secure, and you should therefore take special care in deciding what information you send to us via e-mail.
Important Notice to Non-U.S. Residents
The Services are operated in the United States. If you are located outside of the United States, please be aware that any information you provide to us will be transferred to the United States. By using the Services and/or providing us with any information, you irrevocably consent to this transfer.
How to Contact Us