Video Ads Terms of Service
You must read and agree to these Video Ads Terms of Service if you are a User of Video Ad Creation Tools or Services made available on the iPromote Platform. Video Ad Services are made available by special agreement between iPromote (2K Direct, Inc.) and Animoto, Inc. Collectively herein, the Video Ad Services and applications will be referred to collectively as the "Video Ad Services" or the "Services".
You acknowledge and agree that, by (1) clicking the "I Agree" or similar button via an Entry Point Site to access the Services, or (2) downloading an Animoto application, widget or gadget, or (3) otherwise accessing or using the Services, you indicating that you have read these terms and accept and agree to these terms. If you do not agree with these terms, you must immediately cease all use of the Services and un-install any application, widget or gadget from your hardware. "Entry Point Site" shall be any website or platform which makes the Services available. Your continued use of the Video Ad Services will indicate your acceptance of these Video Ad Terms of Service, including and changes that are made thereto from time to time.
You must be 18 years of age or older to Use the Video Ad Services. You warrant that you are at least 18 years old and you have the authority to enter into these Video Ads Terms of Service. If you do not agree with these Video Ads Terms of Service, you must immediately stop using the Services, and Video Ad Unit Videos or Video Ads created therefrom. This Service is not intended nor directed to children under the age of 13.
Description of Services
The Video Creation Services are provided by special agreement with iPromote (2K Direct, Inc.) through Animoto Inc., a California Corporation with a place of business at 333 Kearny Street, San Francisco, CA 94108 USA. The Services provide iPromote Customers and Advertisers with the ability to have a Video Ad Unit ("Video Ad Unit ") automatically created by Animoto via API using uploaded photographs, graphics, text, or video clips ("Image Content") set to a selected or uploaded music track ("Musical Content").
You understand and agree that although we will use reasonable efforts to ensure the Services are available, temporary interruptions of the Services available through the Services may occur. The Services are provided "AS IS" and neither iPromote nor Animoto is liable to you for any temporary interruption in Services.
Conduct on Services
You agree to obey all applicable laws, rules and regulations in using the Services, and agree that you are responsible for the contents of your submissions or communications through the Services, including Image Content, Musical Content, and Video Ad Units created therefrom (collectively, "Submissions"). You agree not to use any robot, spider or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any of the material on the Services.
Any transfer, assignment, resale or use by a third party of a Video Ad Unit, in any manner or for any reason whatsoever, is subject to these terms and conditions. In no event can a Customer or Advertiser’s rights hereunder or subscription be transferred, assigned, resold or used by a third party in any manner or for any reason whatsoever without the prior written consent of iPromote and Animoto Inc. Any transfer, assignment, resale, or use in violation of this paragraph will be considered, without limitation, a violation of either iPromote’s or Animoto's proprietary rights by such third party, and will be considered a material breach of any agreements between iPromote and its Customer or Advertiser, as the case may be.
You agree that you will not upload, share, or otherwise distribute any Submissions -- including text, graphics, images, sounds, data, music, or other information — that:
- are unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or impersonate another person;
- contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or in any way violate child pornography laws;
- victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- infringe on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
- constitute unauthorized or illegal advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of improper solicitation, or any form of lottery or gambling;
- contain software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
- contains measures that could be used to determine the architecture of the Services, or could be used to decompile, disassemble, or reverse engineer the Services; or
- are not properly owned or licensed by the Customer or Advertiser for the Customer or Advertiser’s Scope of Use.
iPromote and Animoto do not endorse the contents of any Submissions, and expressly disclaim any and all liability in connection with Submissions. We do not pre-screen or monitor Submissions. However, we have the right at our sole discretion to remove any content of any kind that, in our judgment, does not comply with these Video Ads Terms of Service and any other rules of user conduct for the Services, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content.
If you would like to notify us of content that you believe does not comply with these Commercial Terms of Service, please fill out our Contact Form. Make sure to include both the Uniform Resource Locator ("URL") for the non-complying video or content, and the reasons you believe it does not comply. You may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Customers and/or Advertisers who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your account without prior notice to you and without reimbursement if we suspect a violation any of these Video Ads Terms of Service. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
Animoto's Intellectual Property Rights: Animoto is the owner and retains all proprietary rights to their respective services, and those services provided by and through their agreement with iPromote, and all associated copyrights, trademarks, brands, service marks, patents or other proprietary rights under law. You are permitted to use the Services and its content only as specifically authorized by iPromote and Animoto. As a user of the Video Ad Services and your compliance with these Video Ad Terms of Service, you are granted a limited, non-exclusive, revocable, non-transferable right to use the user interface of the Services to create, display, use, play, download (if made available by and through the Animoto API) Video Ad Units within the Scope of Use and during the Term. You are not granted the rights to use, copy, perform or display a Video Ad Unit for broadcast television, radio, or theatrical media.
Animoto's trademarks and/or service marks may not be used in connection with any product or service that is not provided by Animoto, in any manner that is likely to cause confusion among customers or users of the Services, tarnishes or dilutes the marks, or disparages or discredits Animoto.
Certain Animoto's software and services available on the Services are the subject of issued and pending patent application(s), and you are granted a limited right to use such software and services only in conjunction with the Services and in accordance with these Video Ads Terms of Service.
Others' Intellectual Property Rights: iPromote and Animoto deeply respect the third party intellectual property rights that may be implicated in creating a Video Ad Unit. These intellectual property rights, and your responsibilities with respect to these rights, are outlined below.
In creating a Video Ad Unit using Animoto's proprietary software, you will be able to use your own ("Image Content") such as photos, graphics, text, or video segments. The Services may allow iPromote Customers and/or Advertisers to upload their own Musical Content or to use Musical Content provided by iPromote and/or Animoto for creating your Video Ad Unit.
Both the Image Content and Musical Content have associated intellectual property rights as described further herein. You retain any and all rights you hold with respect to Image Content and Musical Content.
Image Content may be protected by copyright, even if not marked with the © symbol. If you are not the creator of Image Content, then you must get permission from the creator of the Image Content or the copyright holder to use the Image Content in a Video Ad Unit. For example, professionally-taken photographs should not be used in a Video Ad Unit unless you have received permission from the photographer to do so. As another example, professionally-produced video clips, such as clips of TV shows or movies, should not be used in a Video Ad Unit unless you have received a license to do so from the owner of the copyright.
Furthermore, if you want to publish Image Content of someone other than yourself, you must get permission from the individuals portrayed in the Image Content before using the content in a Video Ad Unit. Do not upload any Image Content that is confidential or proprietary. We assume no liability with respect to the disclosure or use of confidential or proprietary information uploaded to the Services.
Musical Content that is not an original creation by you is also protectable under copyright laws. Copying music without purchasing or obtaining the rights to the music is against the law. When you upload your own Musical Content, you must be sure that you have the permission to use such Musical Content in a Video Ad Unit prior to doing so. If you are unsure as to whether you have the permission to use Musical Content within the Scope of Use, then you should use Musical Content made available to you through the Services.
You warrant that all Content, including Image Content and Musical Content, uploaded by you, either from your own computer or another website/server, is either created and owned by you, or you have the necessary licenses, rights and permissions to (a) use the Content to create and display an Video Ad Unit as you intend and within the Scope of Use; (b) use the Content as contemplated by the Services and your Scope of Use, and (c) to grant iPromote and/or Animoto the rights described herein. Please be aware that your use of the Content may be interpreted as a use for commercial purposes pursuant to copyright laws. Even if you believe you have certain rights to use third party Content, you should ensure that you have the appropriate rights to use such Content for commercial purposes and within the Scope of Use. We cannot, and do not intend to, provide you legal advice or assistance regarding acquisition of appropriate intellectual property rights. If you are unsure as to whether you have the appropriate rights to use the Content within your Scope of Use, you should consult an attorney.
You hereby grant to Animoto a royalty-free, limited, non‐exclusive, non‐transferrable (except to a successor in a merger or acquisition of Animoto, and then only with written notice to you) license to use, copy, create, modify, display and host your Video Ad Unit, Image Content, and Musical Content solely to the extent necessary for Animoto to provide the Services as described herein.
All trademarks and/or service marks displayed on the Services are the exclusive property of their respective owners, and may not be used without the owner's permission.
Notice of Copyright or Intellectual Property Infringement: If you believe that any of your intellectual property rights have been infringed by an iPromote Customer or Advertiser using the Video Ad Services pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DCMA”), please see iPromote’s Copyright Policy.
Disclaimer of Warranties
ALL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.
WITHOUT LIMITING THE FOREGOING, ANIMOTO AND IPROMOTE MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY YOU FROM THE SERVICES, FROM US, OR FROM ANY THIRD PARTIES’ WEBSITES TO WHICH THE SERVICES IS LINKED, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THE USE OF THE SERVICES, THE UPLOADING OF IMAGE CONTENT AND/OR MUSICAL CONTENT, OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR CONTENT THROUGH THIS SERVICES OR THROUGH THIRD PARTIES' WEBSITES TO WHICH THE SERVICES IS LINKED, IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SERVICE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability
YOUR EXCLUSIVE REMEDY AND EITHER IPROMOTE’S AND/OR ANIMOTO'S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE SERVICES SHALL BE LIMITED TO THE AMOUNT YOU PAID TO IPROMOTE, IF ANY, FOR ANY PRODUCTS AND/OR SERVICES AVAILABLE THROUGH THE SERVICES DURING THE SIX-MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY.
IN NO EVENT SHALL IPROMOTE AND/OR ANIMOTO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SERVICES.
YOU ARE SOLELY RESPONSIBLE FOR MAKING BACKUP COPIES OF ANY AND ALL OF YOUR IMAGE CONTENT AND MUSICAL CONTENT. IPROMOTE AND/OR ANIMOTO SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO YOUR IMAGE OR MUSICAL CONTENT.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold iPromote and Animoto, their respective parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use or misuse of the Video Ad Services, (b) the public performance, distribution, sharing, displaying or viewing of your Content or Video, (c) the violation of laws, rules, regulations or terms of this Agreement, or (d) infringement by your Content, by you, or by someone using your account, of any intellectual property or any other right of any person or entity.
iPromote and/or Animoto reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with the relevant defending party in asserting any available defenses. This indemnification section survives the expiration of your commercial license Term, and applies to claims arising both before and after the Term.
Storage of Material
Sample Video Ad Content will be maintained for a minimum of fourteen (14) days, but you agree that iPromote and/or Animoto will have no responsibility or liability for the deletion or failure to store any content maintained or transmitted on or through the Services.
Do not rely upon the Site as a primary storage space for your content. You should preserve backup copies of any digital data, information or other materials that you have uploaded.
Although the Services may be accessible worldwide, we make no representation that materials on the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this Service from outside the United States do so on their own initiative and are responsible for compliance with local laws. In addition, the Video Ad Services and the Services provided under this agreement may be subject to United States export control regulations or the export control regulations of other countries. You agree to comply strictly with all export control laws, and assume sole responsibility for obtaining licenses to export or re-export as required.
Suspension and Termination of Use
We may suspend your use of the Services, including but not limited to any or all active Video Advertising Campaigns at our discretion and for any reason, including but not limited to violation of these Video Ads Terms of Service. Any suspected fraudulent, abusive or illegal activity may be grounds for immediate suspension of use of the Services, including and or all active Video Advertising Campaigns, and the terminating of your account if it reasonably certain that fraudulent, abusive, or illegal activity has occurred on or through the account, and no cure has been made within ten (10) days of any suspension or in those cases where cure is possible as reasonably determined by iPromote. As dictated by the circumstances, suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. Failure to cure a violation of these Video Ads Terms of Service shall be grounds for the termination of your account.
Agreement to Arbitrate Disputes: The laws of the state of California, USA, will apply to all matters relating to these terms and the use of the Services, without regard to the conflicts of laws principles nor the United Nations Convention on the International Sale of Goods. Notwithstanding anything contained herein, you agree that any legal disputes arising out of or relating to these terms or the Services shall be submitted to binding arbitration in San Francisco, California USA. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules. Any judgment on the award by the arbitrator may be entered in a court having jurisdiction thereof. You agree that any claim, action or proceeding arising out of or related to these terms or the Services must be brought in your individual capacity, and not as a plaintiff or class member in any purported representative or class proceeding. The arbitrator may not consolidate more than one person’s claims. YOU ACKNOWLEDGE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING.