These Terms of Service (the “TOS”) explain the contractual agreement between you (“you”, “your”) and Machinima, Inc. (“Machinima”,“we”, “us”, or “our”), regarding your use of and access to the website located at www.machinima.com (the "Website") as well, if and as applicable, your use of and access to any of our web or software applications, downloads, and services, as well programs such as our loyalty program (collectively, the “Services”).
1. ACCEPTANCE OF THESE TOS BY USING THE WEBSITE AND/OR SERVICES.
By visiting or using the Website and/or Services, you hereby acknowledge, accept and agree to these TOS, and to remain in compliance with them at all times. We reserve the right to change these TOS from time to time, without notice or liability to you, and your continued use of the Website and/or Services shall constitute your acceptance of and agreement with any such changes.
2. USERS, VISITORS AND MACHINIMA COMMUNITY MEMBERS.
You will either access the Website purely as a visitor, with no ability to access services provided by Machinima; or, for users that have elected to register with us to become part of the Machinima community for access to certain components of the Website and/or Services, as a Machinima Community Member (“Machinima Community Member” or “MCM”). Upon registering with us or submission of your MCM registration, you will be deemed to have opted in to receive e–mail communications, updates on the Website and/or Services, general news and info about Machinima, and from time to time special promotional offers from us and/or our partners. Any user IDs, names or passwords associated with your MCM account shall be maintained by you as confidential and should not be shared by you with anyone not authorized to have access to your personal information. You also may be providing, from time to time, certain personal information to us in connection with Services or special offers and promotions in accordance with these TOS as is more fully explained below.
3. YOUR MCM ACCOUNT AND USE OF THE WEBSITE AND SERVICES.
You are expressly prohibited from selling, trading or transferring your MCM account (including, but not limited to, selling, trading or transferring e–mails associated with such account, and/or, for example, Machinima Loyalty Points (or “MPs”) or game/contest related badges (“Badges”) that you may have personally earned through your MCM account and/or as part of the Services). You agree to provide accurate and complete information about yourself when registering, and to accept responsibility for all activities that occur under your account and/or password. You may only have one membership account. You must be thirteen (13) years of age or older to use the Website and/or Services and/or to create a MCM account.
The creation of an account by or for someone under the age of thirteen (13) is expressly prohibited, as are the creation of multiple accounts by or for the same person, or any action taken to try to circumvent these TOS or other membership eligibility requirements, proper working of the MPs system, or proper use of any of the Services, shall be considered a breach hereunder. Upon any such breach or our reasonable suspicion of such a breach or anticipated breach (as shall be determined in our sole discretion), we may terminate any and all such MCM accounts and/or terminate any MPs or Badges associated therewith, prohibit further use by such individual(s) of the Website and/or Services, or take other actions deemed necessary by us in our sole discretion.
4. AGE NOTICE & CONFIRMATION.
By visiting the Website, using the Services and/or creating and MCM account, you represent, warrant and certify that you are at least thirteen (13) years of age. Children under the age of thirteen (13) are prohibited from using the Website, Services and creating MCM accounts, and parents or legal guardians may not agree to any of the aforementioned on such a child’s behalf. If you are a resident of a state, province or country that imposes additional or different age requirements for disclosure of personally–identifiable information, by using the Website, Services, and/or creating an MCM account, you hereby represent that your registration with us, the provision of your personally-identifiable information to us, and our use of such personally–identifiable information as stated in our Privacy Policy, does not violate the applicable laws or regulations of such state, province or country.
5. VARIOUS COMMUNICATIONS.
The Website and/or Services may provide Machinima Community Members (and in some cases visitors) with the ability to send and post messages to others on the Website (including, for example, on the Machinima blog site) and/or through tools that may be included in the Services (instant messenger, chat, or email type functionalities that may or may not be included in various of the Services). Machinima has the right, but not the obligation, to monitor, decline, edit or remove all or a portion of any postings, submissions or content. Submissions and communications by you shall comply with these TOS, our community guidelines (and any other applicable site’s terms and guidelines, as well as any applicable laws or regulations). By using the Website and/or Services or submitting communications to Machinima, you hereby consent to receive communications from Machinima.
6. ACCEPTANCE OF AND AGREEMENT TO MACHINIMA PRIVACY POLICY.
You acknowledge, agree to, and accept the terms of the Machinima Privacy Policy, which is located at: machinima.com/privacy.
7. OWNERSHIP/COPYRIGHT/OTHER INTELLECTUAL PROPERTY RIGHTS.
The Website and Services, and the content and all intellectual property rights included in or associated with the Website and Services, including, but not limited to any Machinima intellectual property such as patents, business process, functionalities, systems, copyrights, trademarks, servicemarks and logos (collectively “Content”), are owned or licensed by us, or otherwise used with the permission or consent of the end-rights-holder, and all right, title and interest in and to the Website and Content remains with us. Except as ordinarily occurs when a site is downloaded to your computer or other internet-connected-device in the normal course of viewing such site, Content may not be utilized, copied, stored, distributed, syndicated, re–published, uploaded, posted, modified, reverse–engineered, or transmitted in any manner inconsistent with these TOS and without our express permission, including, but not limited to, use of such Content for commercial purposes (sale of merchandise with one of our show titles on it or the Machinima logo on it, for example). Certain of our Content may be licensed from third parties and all such third–party content and intellectual property rights related to such Content belongs to the respective third parties. In any event, you may not remove any copyright, trademark, logo or other intellectual property or proprietary notice or legend contained on the Website and/or Services or in the Content.
8. THIRD PARTY CONTENT AND SITES.
The Website may contain links to third–party websites, over which we may have no direct control and all of which may have their own set of rules and guidelines for usage of their sites and services, including terms that will govern your access to and use of our Content, Website and/or Services if done through such third party website. We are not responsible for the contents of any linked site or any link contained in a linked site (other than our own Content) and we are not responsible for the functioning and other aspects of such third party websites. The Website, Services and Content may contain news, advertisements, content and information published by various third–party providers. Use of any such third–party content may be conditioned upon such third party’s terms and conditions.
As part of these TOS you agree to abide by the terms and conditions and community guidelines of other websites and platforms through which you access our Content, Services and Websites, whether through YouTube or other video sharing sites, Facebook, or GoogleTV, etc. It is your responsibility to ensure your ongoing awareness of and compliance with any such third party website’s terms.
9. DMCA NOTICE, COUNTER-NOTICE & PROCESSES
Machinima takes inquiries related to intellectual property rights very seriously and will always respond promptly to alleged copyright violations, in accordance with the terms of the Digital Millennium Copyright Act (“DMCA”). You should note and be aware that nothing in these TOS or our Privacy Policy protects information that we may provide to third parties in our sole discretion or as may be required by law or court order and/or as may be consistent with the below.
A. Notice & Process. If you are a lawful copyright owner, or an agent thereof, and believe that any Content infringes upon your copyright(s), you may submit to us a written notification pursuant to the terms of the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following:
i. A valid signature (physical or electronic) of a person authorized to act on behalf of the owner of an exclusive right that is allegedly being infringed;
ii. Identification of the copyrighted work claimed to have been infringed, or, if more than one copyrighted works at a single online site are covered by a single notification, you must provide a representative list of such works at such site;
iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, along with information reasonably sufficient to allow us to locate the material;
iv. Information reasonably sufficient to allow us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
v. A statement that you have a good faith belief that use of the material in the manner to which you are objecting is not authorized by the copyright owner, its agent, or the law; and
vi. A statement that all of the information you have included in the notification is accurate, under penalty of perjury, including that you are in fact authorized to act on behalf of the owner of the exclusive right that is allegedly being infringed.
Machinima’s designated Copyright Agent to receive notifications claiming copyright infringement is ATTENTION: MACHINIMA Copyright Agent, 1149 North Gower Street, Los Angeles, CA 90038, or by email to: copyright@machinima.com, with “DMCA Notice” preferably in the subject line, or finally by fax to the attention of MACHINIMA Copyright Agent, at: (323) 785-3935.
B. Counter-Notice & Process. If you believe that Content that was removed (or to which access was disabled) was yours and is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in such Content, you may send to our Copyright Agent’s attention (using the same contact information and process as set forth above) a “counter-notice” containing the following information:
i. Your signature (physical or electronic);
ii. Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
iii. A statement that you have a good faith belief that the Content was removed or disabled as a result of a mistake, error, or a misidentification of the Content; and
iv. Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court located in downtown Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If we receive a counter-notice, we may send a copy of it to the original complaining party informing such party that we may restore, replace or re-promote the removed Content, or cease disabling it, in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, Machinima community member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice at our sole discretion. Please note that only DMCA notices should be sent to our Copyright Agent and any and all other feedback, comments, complaints, requests for support, and/or other communications should be directed to customerservice@machinima.com. You acknowledge that if you fail to comply with all of the requirements of this Section 9.B., your DMCA notice may not be valid.
10. YOUR FEEDBACK AND SUBMISSIONS.
Machinima welcomes your feedback, but if you send us your feedback, creative or original concepts or ideas of shows we should be making, channels we should be launching, games we should be covering, storylines we should be exploring, services and functionalities we should be offering, etc., or any confidential, proprietary or other information (“Submissions”), we shall be free to use, edit, modify, or not use any such Submissions without any further notice or obligation to you. Machinima shall not be required to compensate you for any Submissions, and any Submissions shall not be considered confidential upon submission to us in any form or format and through any avenue. Further, by providing Submissions to Machinima via the Website, Services, or otherwise, you: a) represent that you own or have the right to utilize and disclose such Submissions; b) automatically assign any protectable elements of such Submission to Machinima and, if and to the extent any elements are not protectable you also grant us a perpetual, worldwide, unlimited, irrevocable, transferable, assignable, sublicenseable, royalty–free license to use the Submissions, and exercise all copyright, publicity and other rights with respect to any such Submissions; and c) subject to existing laws, waive any moral rights you or your licensors have in any such Submissions.
11. MACHINIMA LOYALTY PROGRAMS AND POINTS.
Machinima Loyalty Program Points (“MPs”) are not transferable, assignable, sellable, or redeemable for cash and have no cash or monetary value. MPs are purely promotional in nature, are only for use on the Website and/or through the Services, and do not constitute a property right or interest. MPs may be redeemed immediately or accrued over time, up to a maximum of 12 months. MPs will expire on a rolling monthly basis if not redeemed within 12 months of being awarded, and Machinima has no obligation to notify you of any such expiration. Machinima may alter, modify, or discontinue the Loyalty Program, adjust, raise and lower the value of MPs, add and remove ways to earn or use MPs, or revise in any other way it deems fit in its sole discretion the Loyalty Program’s terms and conditions at any time. All MPs terminate upon any termination of your MCM account for any reason. Please see the official Terms for the Machinima Loyalty Program for additional terms applicable to acquiring, retaining, and using MPs, which shall be made available upon launch of such a program.
12. PROHIBITED ACTIVITIES.
You or anyone acting on your behalf or for1. ACCEPTANCE OF THESE TOS BY USING THE WEBSITE AND/OR SERVICES. your benefit may not create or use multiple, fake or temporary e–mail accounts, messages or related means, including, without limitation, creating or using websites or programs specifically designed to solicit information from individuals for purposes of generating artificial or fraudulent views of pages or videos, ‘clicks’ on advertisements or offers, inviting members, hacking into our system or creating or using programs, scripts or bots to circumvent proper and authorized use of our Website and/or Services, and their respective proper functionality, for any purpose in conjunction with soliciting information from our users, generating artificial, automated or fraudulent views of pages or videos, ‘clicks’ on advertisements or offers, sending membership invites, passing along promotional offers (unless it is explicitly authorized for you to do so), earning MPs or otherwise utilizing Website/Services functionality and features. You may not sell or purchase MCM accounts and/or associated e–mail addresses or MPs and you may not sell or transfer invitations to “invite only” events we may include you in.
You may not use any device, software, script, bot or routine intended to damage or interfere with the proper working of the Website and/or Services, including, without limitation, creating or utilizing programs to mimic or fake actual user activity on the Website, or to surreptitiously intercept or expropriate any system, data, images or other multimedia elements or personal information from the Website and/or Services. You may not take any action which imposes an unreasonable or disproportionately large “load” on our infrastructure, including but not limited to denial of service attacks, auto–generation techniques, “spam” or any other such unsolicited overload process or technique.
13. COMPLIANCE WITH ALL LAWS AND REGULATIONS.
You agree to comply with all applicable laws, statutes, ordinances and regulations regarding: (i) use of the Website, Services and Content and (ii) release of information to and retrieval of information from the Website and/or Services. To the extent that any applicable taxes apply to your use of the Website and/or Services, you are responsible for the payment of such taxes. We reserve the right to report any wrongdoing, if and when we become aware of it or suspect it, and to disclose any information contained in the Website, Services, and/or your MCM account, as applicable, to any applicable government agencies, all without notice to you and/or liability to us.
14. TERMINATION.
Machinima, in its sole discretion, shall have the right to terminate your use of the Website, the Services, and/or your MCM account and related privileges at any time for any reason or no reason, including, but not limited to, your breach of these TOS (including our Privacy Policy, any community guidelines, and the terms for the Machinima Loyalty Program), a violation of any third-party partner’s site terms or rules, or your violation of any rule, regulation, or law, including, without limitation, violations of our intellectual property rights or the intellectual property rights of a third party. Following any such termination, Machinima shall have no further obligations, responsibilities, or liabilities to you. Notwithstanding anything to the contrary contained herein, in the event that Machinima terminates your use rights, Machinima shall in no way be precluded from pursuing any and all of its additional rights and remedies, either at law or in equity, for any claims, damages, awards, costs and liabilities occasioned by such breach or violation.
15. INDEMNIFICATION.
You agree to indemnify, save, defend, reimburse and hold us harmless from and against any and all claims, demands, actions, costs, liabilities, losses and damages of any kind (including attorneys’ fees), etc. resulting from: (i) your use of the Website and/or Services; (ii) your breach of any provision of these TOS; (iii) the illegality, reliability, appropriateness, originality or copyright of any Submission; and/or (iv) any negligent or intentional wrongdoing by you whether by action or omission.
16. SYSTEMS COMPATIBILITY WITH THE WEBSITE AND SERVICES.
Machinima is not responsible for your hardware, software or browser compatibility with the Website and/or Services, and access to the Website and Services and their respective features may depend on your hardware, software or browser capability and functionality.
17. DISCLAIMER OF WARRANTIES.
MACHINIMA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NON–INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY, REGARDING YOUR USE OF THIS WEBSITE AND/OR THE SERVICES, OR ANY INFORMATION PROVIDED HEREIN OR THE AVAILABILITY OF THIS WEBSITE AND/OR SERVICES OR THE ACCURACY OF RESULTS OBTAINED THROUGH YOUR USE OF THE WEBSITE AND/OR SERVICES.
18. LIMITATION OF LIABILITY.
MACHINIMA SHALL NOT BE LIABLE TO YOU, AND YOU SHALL BE SOLELY RESPONSIBLE, FOR THE SELECTION, USE, AND SUITABILITY OF THE WEBSITE AND/OR SERVICES, INCLUDING THE INFORMATION, CONTENT, MERCHANDISE, OFFERS, AND OTHER EXPERIENCES AND PROMOTIONS PROVIDED THROUGH THE WEBSITE AND/OR SERVICES. MACHINIMA SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL OR ANY OTHER DAMAGES IN CONNECTION WITH YOUR USE OF THE WEBSITE, SERVICES, OFFERS, PROMOTIONS, PURCHASE OR USE OF APPLICATIONS, SERVICES, OR PRODUCTS BY MACHINIMA OR ITS ADVERTISING OR PROMOTIONAL PARTNERS, MERCHANDISE, OR OTHER EXPERIENCES PROVIDED THROUGH THE WEBSITE AND/OR SERVICES AND/OR ANY MACHINIMA “LIVE” EVENTS, INCLUDING, BUT NOT LIMITED TO, LOSS OF OR DAMAGE TO DATA OR LOSS OF OR DAMAGE TO INFORMATION OR PROPERTY REAL OR OTHERWISE, PERSONAL INJURY, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, WARRANTY, OR OTHER LEGAL THEORY, EVEN IF MACHINIMA HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND/OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN BY MACHINIMA. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, MACHINIMA’S TOTAL LIABILITY, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EVER EXCEED $1,000.
19. CALIFORNIA AS CHOICE OF LAW AND FORUM/VENUE.
These TOS and related agreements shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its conflicts of laws principles. All disputes arising out of or with respect to these TOS shall be heard exclusively in the state and federal courts located in downtown Los Angeles, Los Angeles, County, California, and each of the parties hereto expressly consents and submits to the exclusive jurisdiction and venue of such courts. Some jurisdictions do not allow excluding or limiting implied warranties or limiting liability for incidental or consequential damages, and some jurisdictions have special statutory consumer protection provisions that may supersede the foregoing disclaimers and limitations. As such, these disclaimers and/or limitations may not apply to you if prohibited by applicable law.
20. MISCELLANEOUS.
Our failure to exercise or enforce any right(s) or provision(s) of these TOS shall not constitute a waiver of any such right(s) or provision(s). If any provision of these TOS shall be found to be unlawful, void, or for any reason unenforceable, that provision shall be deemed severable from these TOS and shall not impact the validity and enforceability of any remaining provisions. You agree to comply with all local rules regarding online conduct, communication and commerce. You agree, in particular, to comply with all applicable laws regarding the transmission of technical or other data exported from the United States or the country in which you reside. These TOS, and any other terms, agreements or documents incorporated by reference such as the Machinima Privacy Policy located at: machinima.com/privacy, collectively set forth the entire understanding and agreement between us with respect to the subject matter hereof. If you have any problems, questions, suggestions or complaints about these TOS or the Website and/or any Services, please contact us by sending an email to: customerservice@machinima.com.
Additional terms and/or conditions (for example, those governing our Loyalty Program and certain other programs and/or Services) may also apply to you based on the Website functionalities and Services that you use, and you agree to abide by such other terms and conditions, which may also change from time to time without notice.
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