Terms of Service
Welcome to IndiePlaya, the online independent film distribution and marketing platform owned and operated by IndiePlaya, LLC ("IndiePlaya," "we" or "us").
THIS IS A LEGAL, BINDING CONTRACT BETWEEN YOU AND INDIEPLAYA. PLEASE READ THE FOLLOWING CAREFULLY BEFORE VISITING INDIEPLAYA.COM OR USING THIS SERVICE.
1.
YOUR AGREEMENT
a.
By using or visiting the IndiePlaya website www.IndiePlaya.com or any IndiePlaya product, software, data feed, or service provided by IndiePlaya (collectively, the "Service"), you indicate that you understand and agree to these terms and conditions (the "Terms of Service") and IndiePlaya's Privacy Policy, published at http://www.indieplaya.com/Company_privacy.do and incorporated herein by this reference ("Privacy Policy"). If you do not agree to any of the Terms of Service or Privacy Policy, please do not use the Service.
b.
Although IndiePlaya may attempt to notify you when major changes are made to these Terms of Service, you should periodically review the most up-to-date version, which can be found at http://www.indieplaya.com/Company_privacy.do. IndiePlaya reserves the right, at its sole discretion, to amend these Terms of Service and/or its Privacy Policy at any time and without notice, and it is your responsibility to review both these Terms of Service and IndiePlaya's Privacy Policy for any changes. Accordingly, please check the Terms of Service and Privacy Policy periodically for changes. Your continued use of the Service following any amendment of the Terms of Service or Privacy Policy constitutes your binding acceptance of any such changes. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits, except as you designate or elect, and thereby agree to, in connection with your use of the Service.
2.
THE SERVICE
a.
These Terms of Service apply to all users of the Service, including users who are also contributors of Content on the Service. "Content" includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of IndiePlaya, including, without limitation, all products, software and services offered via the IndiePlaya website (including any channel, embedded player, uploader or other application offered or powered by IndiePlaya).
b.
The Service may contain links to third party websites that are not owned or controlled by IndiePlaya. IndiePlaya has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, IndiePlaya will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly relieve IndiePlaya from any and all liability arising from your use of any third-party website. Accordingly, we strongly encourage you to be aware of when you leave the Service and to read the terms and conditions and privacy policy of any other website that you visit.
3.
ACCOUNT REGISTRATION, PASSWORDS AND SECURITY
a.
You will not be required to create an IndiePlaya account in order to watch Content using the Service or navigate the IndiePlaya website, other than that portion of the website reserved for filmmakers, distributors and other Content providers (individually, "Content Provider"; collectively, "Content Providers"). However, in order to use or access certain features or functionality of the IndiePlaya website or the Service, such as posting a comment, generating a tag, writing a review, creating a bookmark, creating a playlist, rating a video or uploading Content to the IndiePlaya website, you will first need to register with the Service via the IndiePlaya website.
b.
You can register with the Service by creating a personal account. In order to do so, you will be required to choose a unique user name and password and enter other information that we may ask for on our registration form, including, without limitation, your name, date of birth, email address, gender and country of residence (collectively, "Registration"). We reserve the right to send you a confirmation email once your Registration is complete.
c.
In order to register an account, you must be: (i) of legal age to form a binding contract with us in the country in which you reside and be fully able and competent to enter into and comply with these Terms of Service; or (ii) 13 years of age or older and have the consent of a parent or guardian who will register the account and supervise your use of the IndiePlaya website and the Service.
d.
You may never use another's account without permission. When creating your account, you must provide true, accurate, current and complete information.
e.
You shall ensure that the details you provide at Registration are kept accurate and up-to-date at all times. You can change the details that you provide at Registration at any time via the IndiePlaya website. If you would like us to terminate your Registration (which you may do at any time) please let us know by email to support@indieplaya.com. Upon termination of your Registration, IndiePlaya will delete or overwrite, at its discretion, any personally identifiable information (e.g., email address, username, password, name), but reserves the right to retain records and other information related to your account (e.g., transaction history, country, age, gender). All Registration information provided by you shall be subject to our Privacy Policy.
f.
You are solely responsible for maintaining the confidentiality of your password and user name and for all activities that are carried out under them. We do not have the means to check the identities of people using the IndiePlaya website or the Service, and we will not be responsible for losses suffered by you where your password or user name is used by someone else to access the IndiePlaya website or the Service, unless this is due to our negligence. You agree to notify us immediately by email to support@indieplaya.com if you become aware of or suspect any unauthorized use of your password or user name.
g.
Although IndiePlaya will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of IndiePlaya or others due to such unauthorized use.
4.
GENERAL USE OF THE SERVICE: PERMISSIONS AND RESTRICTIONS
IndiePlaya hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:
a.
You agree not to distribute in any medium any part of the Service or the Content without IndiePlaya's prior written authorization, unless IndiePlaya makes available the means for such distribution through features or functionality offered by the Service.
b.
You agree not to alter or modify any part of the Service.
c.
In the event that a downloadable version of specific Content is not made available on the Service, you agree not to access such Content through any technology or means other than the video playback pages of the Service itself, one of the embedded players on the Service or powered by IndiePlaya, or other explicitly authorized means designated or provided by IndiePlaya.
d.
You agree not to use the Service for any of the following commercial uses unless permission for such use(s) is granted on the Service or you obtain IndiePlaya's prior written approval, at IndiePlaya's sole discretion:
i.
the sale of access to the Service;
ii.
the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or
iii.
the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from IndiePlaya appears on the same page and is of sufficient value to be the basis for such sales.
e.
Prohibited commercial uses do not include:
i.
uploading to the Service Content that you have the right to sell, rent or otherwise license (collectively, "Distribution Rights"), or maintaining an original channel, website, application, web page or profile powered by IndiePlaya, to promote your artistic enterprise or business;
ii.
selling, renting or otherwise licensing original Content to which you have Distribution Rights;
iii.
linking the IndiePlaya website to a third-party blog, website or other internet or mobile presence over which you have control and permission to so link, subject to these Terms of Service; or
iv.
any use that IndiePlaya expressly authorizes in writing.
f.
If you use any feature or functionality powered by IndiePlaya on your website or on any personal profile or other internet or mobile presence enabled by a third-party (e.g., a social network site):
i.
you may not modify, build upon, or block any portion of such IndiePlaya feature or functionality, including, without limitation, links back to the IndiePlaya website.
ii.
you agree that any such IndiePlaya feature or functionality may automatically download and install updates from time to time from the Service, and you further agree to receive any such updates (and permit IndiePlaya to deliver these to you) as part of your use of the Service, which updates are designed to improve, enhance and further develop the Service and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.
g.
You agree not to use or launch any automated system, including, without limitation, "robots," "bots," "spiders," "crawlers," "offline readers," "demon dialers," "daemon processes" or other software agent, that accesses the Service in a manner that sends more request messages to the IndiePlaya servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, IndiePlaya grants the operators of public search engines permission to use spiders to copy materials from the IndiePlaya website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. IndiePlaya reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
h.
In your use of the Service, you will comply with all applicable laws and regulations.
i.
IndiePlaya reserves the right to discontinue any aspect of the Service at any time.
ANY ELECTION OR DESIGNATION MADE BY YOU THROUGH THE SERVICE (INCLUDING OPTING IN OR OUT OF A PARTICULAR FEATURE OR SET OF FEATURES OFFERED ON THE SERVICE) SHALL CONSTITUTE YOUR EXPRESS PERMISSION AND AUTHORIZATION FOR ANY SUCH ACT(S) AT THE TIME YOU MAKE SUCH ELECTION OR DESIGNATION. ACCORDINGLY, PLEASE READ AND DECIDE CAREFULLY BEFORE MAKING ANY ELECTION OR DESIGNATION ON THE SERVICE AS SUCH DECISION(S) MAY AFFECT WHICH FEATURES OR FEATURE-SETS WILL BE ACTIVATED OR DE- ACTIVATED (I.E., TURNED ON OR OFF) FOR PARTICULAR CONTENT OR FOR YOUR ACCOUNT IN GENERAL, AS WELL AS THE TERMS AND/OR CONDITIONS OF OFFERINGS MADE OR RECEIVED BY YOU ON THE SERVICE.
5.
YOUR USE OF CONTENT
In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.
a.
The Content on the Service, and the trademarks, service marks and logos (collectively, "Marks") on the Service, are owned by or licensed to IndiePlaya, subject to copyright and other intellectual property rights under the law.
b.
The Content on the Service, and the trademarks, service marks and logos (collectively, "Marks") on the Service, are owned by or licensed to IndiePlaya, subject to copyright and other intellectual property rights under the law.
c.
You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
d.
You understand that when using the Service, you will be exposed to Content from a variety of sources, and that IndiePlaya is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against IndiePlaya with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless IndiePlaya, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.
6.
SUBMISSION OF CONTENT
a.
As an IndiePlaya account holder you may submit Content to the Service, including videos and user comments. You understand that IndiePlaya does not guarantee any confidentiality with respect to any Content you submit.
b.
You shall be solely responsible for your Content (i.e., Content for which you have ownership, distribution or other licensing rights) ("Your Content") and the consequences of submitting and publishing Your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit; and you license to IndiePlaya all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to these Terms of Service.
c.
For clarity, you retain all of your ownership rights in Your Content. However, by submitting Content to IndiePlaya, you hereby grant to IndiePlaya a worldwide (unless restricted or limited by you through applicable geo-fencing settings on the Service), non-exclusive, transferable, sublicensable (through multiple tiers), assignable, royalty-free (subject to the Payment of Proceeds provisions in Section 11, below) license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and IndiePlaya's (and its successors' and affiliates') business, including, without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels, now or hereafter devised. You also hereby grant each user of the Service a non-exclusive license to access Your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in Content you submit to the Service terminate within a commercially reasonable time after you remove or delete Your Content from the Service. You understand and agree, however, that IndiePlaya may retain, but not display, distribute, or perform, server copies of Your Content that have been removed or deleted.
d.
You further agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner(s) of the material or you are otherwise legally entitled to post the material and to grant IndiePlaya all of the license rights granted herein.
e.
You further agree that you will not submit to the Service any Content or other material that is pornographic or obscene, or that violates applicable local, national or international laws or regulations.
f.
IndiePlaya does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and IndiePlaya expressly disclaims any and all liability in connection with Content. IndiePlaya does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and IndiePlaya will remove all Content if properly notified that such Content infringes on another's intellectual property rights. IndiePlaya reserves the right to remove Content without prior notice.
7.
PROHIBITED CONDUCT
By using the Service, you agree not to:
a.
use the Service for any purposes other than (i) to disseminate or receive original or appropriately licensed content, or (ii) to access the Service as it is offered by IndiePlaya;
b.
rent, lease, loan, sell, resell, sublicense, distribute or otherwise transfer the licenses granted herein or any Proprietary Elements (as defined in Section 14, below);
c.
post, upload, or distribute any defamatory, libelous, or inaccurate Content;
d.
post, upload, or distribute any Content that is unlawful or that a reasonable person could deem to be objectionable, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
e.
impersonate any person or entity, falsely claim an affiliation with any person or entity, or access the IndiePlaya accounts of others without permission, forge another person's digital signature, misrepresent the source, identity, or content of information transmitted via the Service, or perform any other similar fraudulent activity;
f.
delete indications or notices regarding the copyright or other proprietary rights of any third party content on the Service;
g.
make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Service, including, without limitation, unsolicited advertising, promotional materials, or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures;
h.
use the Service for any illegal purpose, or in violation of any local, state, national, or international law, including, without limitation, laws governing intellectual property and other proprietary rights, and data protection and privacy;
i.
defame, harass, abuse, threaten or defraud other users of the Service, or collect, or attempt to collect, personal information about other users or third parties without their consent, or use Content posted by another on the Service for any commercial use without their express authorization, it being understood that such authorization may be available through the Service if both parties so elect;
j.
remove, circumvent, disable, damage or otherwise interfere with security-related features of the Service, features that prevent or restrict use or copying of any Content accessible through the Service, or features that enforce limitations on use of the Service;
k.
reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
l.
modify, adapt, translate or create derivative works based upon the Service or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
m.
intentionally interfere with or damage operation of the Service or any user's enjoyment thereof, by any means, including uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code;
n.
take any action that may undermine our content rating and comment system (such as displaying, importing or exporting information off the Service, using information on the Service for purposes unrelated to the Service, or improperly manipulating or using the ratings and comment system);
o.
manipulate the price of any item or interfere with other user's listings;
p.
take any action that imposes or may impose (in IndiePlaya's sole discretion) an unreasonable or disproportionately large load on IndiePlaya's infrastructure;
q.
interfere or attempt to interfere with the proper workings of the Service or any activities conducted on the Service;
r.
bypass robot exclusion headers or other measures IndiePlaya may use to prevent unauthorized access to the Service;
s.
upload or post any Content that contains advertising or other promotional material, including links to such material, unless expressly authorized by IndiePlaya; or
t.
upload or post any Content that is encrypted, or otherwise unreadable or unviewable by IndiePlaya.
8.
REPRESENTATIONS AND WARRANTIES
a.
Ability to Accept Terms of Service. You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are at least 13 years of age, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service. There are lots of other great websites for you. Please talk to your parents or legal guardian about what sites are appropriate for you.
b.
By using the Service, you represent and warrant that you have not been previously suspended or removed from the Service.
c.
IF YOU ARE USING OR OPENING AN ACCOUNT WITH INDIEPLAYA ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A "SUBSCRIBING ORGANIZATION") THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THESE TERMS OF SERVICE; (II) HAVE READ THESE TERMS OF SERVICE IN THEIR ENTIRETY; (III) UNDERSTAND THESE TERMS OF SERVICE, AND (IV) AGREE TO THESE TERMS OF SERVICE ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.
d.
By uploading Content to the Service, you affirm, represent, and warrant that: (i) you are solely responsible for that Content and the consequences of posting or publishing it; (ii) you are the creator and owner of, or have the necessary licenses, rights, consents and permissions to use and to authorize IndiePlaya and its users to use and distribute, that Content as necessary to exercise the licenses granted by you in Section 10, below, and in the manner contemplated by IndiePlaya and these Terms of Service; and (iii) the Content does not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (3) contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access potentially infringing content outside of the Service. Violators of these third-party rights may be subject to criminal and civil liability. IndiePlaya reserves all rights and remedies against any users who violate these Terms of Service.
e.
You understand and acknowledge that when using the Service, you will be exposed to Content from a variety of sources, and that IndiePlaya is not responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against IndiePlaya with respect thereto. IndiePlaya does not endorse any Content or any opinion, recommendation or advice expressed therein, and IndiePlaya expressly disclaims any and all liability in connection with Content. If notified by a user or a Content owner of Content that allegedly does not conform to these Terms of Service, IndiePlaya may investigate the allegation and determine in its sole discretion whether to remove such Content, which it reserves the right to do at any time and without notice. For clarity, IndiePlaya does not permit copyright infringing activities on the Service.
9.
RIGHTS GRANTED AND RESERVED BY INDIEPLAYA
a.
License Grant to You. Subject to your full compliance with these Terms of Service, IndiePlaya hereby grants to you a personal, limited, non-exclusive, non-transferable, freely revocable license to use the Service: (i) for the uploading and distribution of your authorized Content; (ii) to download and stream Content from the Service; and (iii) to access and make personal use of the IndiePlaya website and the Service, provided that you do not download (other than page caching) or modify any portion of the IndiePlaya website or any third-party blog, website or other internet or mobile presence powered by IndiePlaya, except with our prior written consent.
b.
Reservation of Rights. IndiePlaya reserves all rights not expressly granted in these Terms of Service.
c.
Control and Use of Your Computer. You represent and warrant that you own the computer from which you are uploading and/or distributing Content or to which you are downloading or streaming any Content, or that you have the legal right to control the use of that computer. You agree to ensure that any other person whom you permit to use any part of the Service will do so in accordance with these Terms of Service. You are not authorized to use the Service unless you have the legal right to control use of the computer used by you to upload, distribute, download or stream Content.
d.
Prevention of Unauthorized Use. IndiePlaya reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of the Service, including, without limitation, technological barriers, IP mapping, inserting invisible "digital markers" into downloadable Content (as described more fully in Subsection 10.a.iii, below), and directly contacting your Internet Service Provider ("ISP") regarding such unauthorized use.
e.
Reviews, Comments, Communications and Other Content.
i.
You may (A) post reviews, comments, and other Content to the Service; (B) send communications, as permitted by the Service; and (C) submit suggestions, ideas, comments, questions, or other information, so long as the Content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Content. IndiePlaya reserves the right to remove or edit any Content in violation of the foregoing.
ii.
If you do post Content or submit material, and unless we indicate otherwise, you grant IndiePlaya and its affiliates and sublicensees a nonexclusive, royalty-free (subject to the Payment of Proceeds provisions in Section 11, below), and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such Content throughout the world in any media. You grant IndiePlaya and its affiliates and sublicensees the right to use the name that you submit in connection with such Content, if they so choose. You represent and warrant that: (i) you own or otherwise control all of the rights to the Content posted or uploaded by you or on your behalf; (ii) the Content is accurate; (iii) use of the Content supplied by you or on your behalf does not violate this policy and will not cause injury to any person or entity; and (iv) you will indemnify IndiePlaya or its affiliates or sublicensees, as applicable, for all claims resulting from Content supplied by you or on your behalf. IndiePlaya has the right, but not the obligation, to monitor and edit or remove any activity or Content from the Service. IndiePlaya takes no responsibility and assumes no liability whatsoever for any Content posted by you or any third party.
10.
RIGHTS GRANTED BY YOU WHEN UPLOADING CONTENT
a.
Limited License Grant to IndiePlaya. By uploading Content to the Service, you grant to IndiePlaya:
(i)
a worldwide (unless restricted or limited by you through applicable geo-fencing settings on the Service), non-exclusive, transferable, sublicensable (through multiple tiers), assignable, royalty-free (subject to the Payment of Proceeds provisions in Section 11, below) license to host, transfer, display, perform, reproduce, distribute, modify and otherwise exploit Your Content (and any copyrights, publicity, database and other proprietary rights therein), in any media formats and through any media channels, now or hereafter devised, in order to facilitate the distribution, promotion or advertisement of Your Content, the IndiePlaya website or the Service;
(ii)
the right to make slight modifications to Content provided by you for the limited purpose of streamlining the delivery of such Content to users. As an example, if we detect that the bitrate of an item of Content is too great for a user to view it via their computer or internet connection, we have the right, but not the obligation, to downgrade the bitrate (or substitute a lower quality stream, as provided by you) in order to maximize the viewing experience of the user; and
(iii)
the right to insert an invisible "digital marker" in Content provided by you that can be used for identification purposes, should the need arise (e.g., to identify potential copyright infringer(s) in the event that a user downloads Content and attempts to distribute it illegally, in which case, the digital marker may, in IndiePlaya's sole discretion, be used to identify the original Content downloader in connection with any appropriate action(s) that may be taken against such infringer(s), such as terminating their use of the Service and/or providing information to the Content Provider to assist in any legal action related thereto; provided, however, that nothing herein shall obligate IndiePlaya to provide assistance in any such legal action (apart from its obligations under the DMCA, as set forth more fully in Section 15, below), unless so ordered by a court of competent jurisdiction, and IndiePlaya reserves the right, but not the obligation, to pursue appropriate action(s) against suspected infringers of Content).
b.
Limited License Grant to Users. By uploading Content to the Service, you grant to each user of the Service a non-exclusive license to access and use such Content on the terms and conditions designated by you on the Service with respect to each such item of Content. The foregoing license granted by you terminates as to a specific item of Content once you remove or delete such Content from the Service; provided, however, that user rights to such Content arising out of a purchase, rental or license occurring on or prior to deletion of such Content from the Service survive any termination or expiration of the license granted in this section.
11.
PAYMENT OF PROCEEDS; FEES AND CHARGES COLLECTED BY INDIEPLAYA; OFFSETS
a.
Payment of Proceeds; Fees & Charges. IndiePlaya will collect all proceeds from the sale, rental or other licensing of Content through the Service ("Content Proceeds"). All Content Proceeds shall be held by IndiePlaya for a minimum of sixty (60) days (the "Hold-Back Period") in order to address any credit card charge-backs, refunds, fraud, unpaid postage/shipping fees, or other payment processing issues that might arise. On the first business day of the month following the Hold-Back Period, or as soon thereafter as practicable, IndiePlaya will forward payment to you (electronically or otherwise, at our sole discretion) of all then outstanding amounts owing to you from Content Proceeds (not including any credit card charge-backs, refunds, consumer returns, fraud or other payment processing issues arising in connection therewith), less IndiePlaya's standard, fixed transaction fee, sales and other taxes (as set forth in Section 12, below), credit card fees, disk storage fees, network transmission fees, physical delivery fees (for digital and/or physical products), reserves against returns of physical product (as set forth in Subsection 11.a.iii, below), and any payment processing fees assessed by a third-party payment processor, which fees are as follows:
i.
IndiePlaya will charge a fixed transaction fee equal to the lesser of $1.99 per transaction (i.e., for each sale, rental or other licensing of Content, in digital or physical form, through the Service) or fifty percent (50%) of the per unit sale, rental or licensing price, down to a floor of $0.99 (i.e., in no event shall IndiePlaya retain less than $0.99 per transaction [the "Minimum Fee"], it being understood and agreed that upsells, cross-sells, bundles and the like each constitute more than one transaction for which multiple transaction fees, corresponding to the number of items/units sold, rented or otherwise licensed in each upsell, cross-sell, bundle or the like, will be assessed); and
ii.
IndiePlaya will charge the following credit card fees, storage fees, transmission/delivery fees and, if applicable, any payment processing fees as pass-through fees on each transaction (i.e., for each sale, rental or other licensing of Content, in digital or physical form, through the Service):
A.
Credit card processing fees: $0.30 + 2.9% per transaction. IndiePlaya currently uses PayPal for credit card processing. PayPal's prices may be viewed at
https://www.paypal.com/cgi-bin/webscr?cmd=_display-business-pricing-outside. In the event of a change in pricing by our credit card processing provider, IndiePlaya will adjust its pricing to match said change in pricing, but will only charge you for credit card processing at our cost.
https://www.paypal.com/cgi-bin/webscr?cmd=_display-business-pricing-outside. In the event of a change in pricing by our credit card processing provider, IndiePlaya will adjust its pricing to match said change in pricing, but will only charge you for credit card processing at our cost.
B.
Disk storage and network transmission fees: $0.32 per Gigabyte (rounded to the nearest 1/10th of a Gigabyte). Due to varying runtimes and other factors impacting file size such as video resolution, aspect ratio, frame rate and video encoding options, each Content file may have a different cost associated with it. As an example, a typical feature-length video in a standard definition format at a 2.5Kbps streaming bit-rate has a file size of approximately 1.2 Gigabytes, in which case the disk storage and network transmission fee would be $0.384 per sale, rental or other licensing of such Content.
C.
Payment processing fees, if applicable, assessed by a third-party payment processor (such as PayPal or Xoom.com) in connection with any payment to you under these Terms of Service.
iii.
IndiePlaya shall be shall be entitled to establish a reserve for future returns of physical product (e.g., DVDs) on all accounts offering physical product. Such reserves shall be maintained at twenty-five (25%) percent for the first six (6) months after you first upload Content to our system and thereafter at twenty (20%) percent and shall be liquidated within six (6) months from the accounting period for which such reserves were set up.
b.
Shipping Fees and Labels. As a convenience to Content Providers distributing physical product (e.g., DVDs), IndiePlaya provides filmmakers and distributors with a pre-paid shipping label for the fulfillment of physical DVD orders and collects the shipping charges and associated fees from consumers therefor.
i.
In the event that a Content Provider distributes physical product, IndiePlaya shall perform and provide the following:
A.
Collect shipping fees from the consumer (based on our third-party shipping services published rates).
B.
Provide real-time reports listing outstanding orders.
C.
Provide a shipping label from the Content Providers address of record to the consumer's shipping address (the postage will be pre-paid if the Content Provider uses the shipping label provided by IndiePlaya, up to the amount collected from the consumer).
D.
Provide a packing list that details the items and their respective quantities ordered.
E.
Enforce commercially reasonable technical controls on our platform such that consumers cannot order more of a particular physical product than the quantity on hand, as reported by the Content Provider (e.g., when the quantity on hand for any given physical product has been exhausted, IndiePlaya will disable the physical product option for that Content until such time as the Content Provider provides an update to reflect additional quantities on hand).
ii.
In the event that you distribute physical product, you are responsible for the following:
A.
Regularly checking for outstanding, unfulfilled orders on the IndiePlaya system (notifications for outstanding unfulfilled orders will be provided on our website). As a convenience, we may send you an email notification when an order is placed; however, no such notification shall relieve you of your ultimate obligation to check the IndiePlaya website for orders that may get lost due to your spam filter, a change in your email address, etc.
B.
The actual, physical packaging and delivery (collectively, "Fulfillment") of all physical product sold to consumers in a timely manner.
C.
Calculation and payment of any fees or costs in excess of the pre-paid postage/shipping that may be incurred in connection with Fulfillment of the physical product.
D.
Ensuring that the quantity of physical product reported on hand comports with the amount actually on hand.
iii.
Additional Disclaimers: Pre-paid shipping labels are provided by IndiePlaya for the convenience of Content Providers. Content Providers are not obligated to use the pre-paid shipping labels provided by us and may elect to use any delivery method or service of their own choosing; provided, however, that in the event a Content Provider elects not to use the pre-paid shipping labels provided by IndiePlaya, the Content Provider must (A) pay all shipping charges themselves, and (B) use a delivery method with a delivery timeframe comparable to that of the pre-paid shipping label provided us. In the event that a Content Provider does not download a pre-paid shipping label from our site, IndiePlaya may, in its sole discretion, do any of the following: (1) withhold those amounts collected for the Hold-Back Period; (2) if physical product was purchased but never actually shipped, refund the consumer for previously paid shipping charges; (3) if excess shipping charges were collected, refund the consumer the difference between the amount collected and the actual shipping charges; or (4) if physical product was shipped and the Content Provider paid the shipping charges therefor, reimburse the Content Provider for such shipping charges up to the lesser of the actual shipping charges incurred by the Content Provider or the actual shipping charges paid by the consumer (less any fees paid by us to a third-party shipping service). In the event that a Content Provider is reimbursed for any shipping charges, we will refund any remaining shipping monies to the consumer. Each pre-paid shipping label provided by IndiePlaya is a single use label (i.e., it can only be used on a single shipment and cannot be reused). Content Provider agrees that shipments will conform to media mail shipping requirements http://www.usps.com/send/waystosendmail/senditwithintheus/mediamail.htm. Notwithstanding anything to the contrary herein, you understand and agree that you are responsible for the calculation and payment of all fees and costs associated with Fulfillment of Your Content and that such amounts may be deducted from amounts collected by us from the consumer, which you hereby expressly authorize.
c.
Offsets. You hereby authorize IndiePlaya to offset against any amounts owed to you pursuant to this Agreement any amounts that you may owe to IndiePlaya, whether under an indemnification provision or for costs, expenses or deductions authorized in this Agreement.
d.
Unless otherwise stated, all fees are quoted in U.S. Dollars. We will make commercially reasonable efforts to forward any and all payments owing to you from Content Proceeds promptly once they become due in accordance with the foregoing; provided, however, that nothing in these Terms of Service or by operation of law shall subject IndiePlaya to liability for any late payment(s) to you.
12.
SALES AND OTHER TAXES
IndiePlaya will use commercially reasonable efforts to collect sales and other taxes owed in connection with Your Content (e.g., value added taxes, excise taxes, and similar taxes) (collectively, "Sales Tax"), and to remit such Sales Tax on your behalf to the appropriate government authorities. Notwithstanding the foregoing, you acknowledge and agree that you are ultimately responsible for the payment of any Sales Tax owed in connection with the sale, rental, license or distribution of Your Content pursuant to this Agreement, and you hereby agree to indemnify IndiePlaya for any Sales Tax that may be owed in addition to those amounts collected and remitted on your behalf by IndiePlaya. No payment by IndiePlaya on your behalf shall constitute a waiver of the foregoing or create any obligation on the part of IndiePlaya to make further Sales Tax payments on your behalf.
13.
INTERNATIONAL DUTIES AND TAXES
You may be subject to import duties and taxes for physical product (e.g., DVDs and other goods) purchased by you through the Service, which are levied once a shipment reaches your country. Additional charges for customs clearance must be borne by you; we have no control over these charges and cannot predict what they may be. Customs policies vary widely from country to country; you should contact your local customs office for further information. Additionally, when ordering from the IndiePlaya website, you are considered the importer of record and must comply with all laws and regulations of the country in which you are receiving the goods.
14.
COUPONS AND PROMOTIONS
In the event that you offer a coupon, coupon code or other promotional offering (collectively, "Promotional Offering") in connection with Your Content permitting a discount on the purchase, rental or license thereof, such Promotional Offering must not reduce the purchase, rental or license price such that the amount collected by IndiePlaya for any given transaction is less than the Minimum Fee owed to IndiePlaya therefor after deduction of credit card, storage, transmission and other payment processing fees, as applicable, in accordance with Section 11, above. IndiePlaya reserves the right to invalidate or modify any Promotional Offering created or offered by a Content Provider that would result in IndiePlaya being unable to recoup the fees, charges and Sales Tax collected by IndiePlaya, as set forth more fully in Sections 11 and 12, above. By way of example only, if a Content Provider offers Content for sale at $2.99 and such Content Provider also offers a discount coupon to consumers permitting a 50% discount off the retail price, assuming that the fees, charges and Sales Tax due to, or collected by, IndiePlaya are in excess of $1.49, then IndiePlaya may, at its sole discretion, do any of the following: (a) invalidate the coupon; (b) honor the coupon at less than its face value so that all fees due to IndiePlaya are collected; or (c) honor the coupon but retain all proceeds collected from the transaction. Although Content Providers may utilize features on the IndiePlaya platform to offer discounts to consumers, all such discounts will be deducted from the Content Providers portion of Content revenues. IndiePlayas fees will be calculated on, and deducted from, those amounts actually paid by a consumer for the Content. By way of example only, if the stated retail price for a film is $4.99 and the consumer uses a 50% discount coupon, then our fees will be calculated based on the $2.49 that is collected from the consumer after such coupon is applied to the transaction.
15.
INTELLECTUAL PROPERTY
a.
The Service and each of its constituent elements, now or hereafter developed, including, without limitation, the visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the IndiePlaya website and of the Service provided by IndiePlaya (collectively, the "Proprietary Elements"), are proprietary to IndiePlaya and are protected under United States and international intellectual property laws, including, without limitation, patent, copyright, trademark, service mark, trade secret and/or trade dress laws. The Proprietary Elements are TM and © 2008-2013 IndiePlaya, LLC. All rights reserved. IndiePlaya reserves any rights not expressly granted herein.
b.
You may not modify, copy, distribute, frame, reproduce, republish, download, display, post, transmit, sell, rent or license the Content or any other copyrighted material, trademarks, or proprietary information owned or controlled by IndiePlaya or any third party, in any form or by any means, in whole or in part, without obtaining the prior written consent of the owner of such proprietary rights, unless otherwise permitted by these Terms of Service.
c.
Copyrights: All Content posted on the IndiePlaya website or offered through the Service (including, without limitation, audio clips, digital downloads, data compilations, software, design, text, graphics, logos, button icons, images, other files, and their selection and arrangement) is the property of IndiePlaya or of our affiliates or licensors, and is protected by United States and international copyright laws. The compilation of all Content posted on the IndiePlaya website or offered through the Service is our exclusive property, and is protected by U.S. and international copyright laws. All software used on the IndiePlaya website or offered through the Service is our property or the property of our affiliates or licensors, and is protected by United States and international copyright laws. All rights reserved. Copyrights in and to the films and other Content sold, rented or otherwise licensed on the IndiePlaya website or through the Service are held by their respective owners.
d.
Trademarks: All trademarks on the IndiePlaya website and on any third-party blog, website or other internet or mobile presence powered by IndiePlaya are either trademarks or registered trademarks of IndiePlaya or its affiliates or licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of IndiePlaya. All page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of IndiePlaya or its affiliates, and may not be copied, imitated, or used, in whole or in part, without the prior written permission of IndiePlaya in its sole discretion. Other trademarks, registered trademarks, product names, and company names or logos displayed on the IndiePlaya website or the Service are the property of their respective owners.
16.
DIGITAL MILLENNIUM COPYRIGHT ACT
a.
If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
i.
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
ii.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that 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 and information reasonably sufficient to permit the service provider to locate the material;
iv.
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
v.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi.
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
IndiePlaya's designated Copyright Agent to receive notifications of claimed infringement is:
Copyright Agent
IndiePlaya, LLC
1900 S. Norfolk Street, Suite 350
San Mateo, CA 94403-1171
USA
email: copyright@indieplaya.com
IndiePlaya's designated Copyright Agent to receive notifications of claimed infringement is:
Copyright Agent
IndiePlaya, LLC
1900 S. Norfolk Street, Suite 350
San Mateo, CA 94403-1171
USA
email: copyright@indieplaya.com
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to IndiePlaya customer service through support@indieplaya.com. You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid.
b.
Counter-Notice. If you believe that Your Content that was removed (or to which access was disabled) 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 Your Content, you may send a counter-notice containing the following information to the Copyright Agent:
i.
Your physical or electronic signature;
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 mistake 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 in San Francisco, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, IndiePlaya may send a copy of the counter-notice to the original complaining party informing that person or entity that it may replace the removed Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content Provider, member or user, the removed Content may be replaced, or access to it restored, in 10 (ten) to 14 (fourteen) business days or more after receipt of the counter-notice, at IndiePlaya's sole discretion.
If a counter-notice is received by the Copyright Agent, IndiePlaya may send a copy of the counter-notice to the original complaining party informing that person or entity that it may replace the removed Content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the Content Provider, member or user, the removed Content may be replaced, or access to it restored, in 10 (ten) to 14 (fourteen) business days or more after receipt of the counter-notice, at IndiePlaya's sole discretion.
17.
ACCOUNT TERMINATION POLICY; REMOVAL OF CONTENT
a.
IndiePlaya will remove any Content that infringes upon the copyright of any person or entity under the laws of the United States upon receipt of a statement in conformance with the DMCA notice of copyright infringement provisions set forth in the preceding section (or any statement in conformance with 17 U.S.C. § 512(c)(3)), and will terminate the access privileges of those who repeatedly infringe on the copyright of others. United States law imposes substantial penalties for falsely submitting a notice of copyright infringement.
b.
Only Content that is "festival worthy," as that phrase is generally understood in the entertainment industry, may be uploaded to the Service (meaning professionally produced videos, not user-generated "home video" type content). IndiePlaya reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, including, without limitation, pornography, obscenity, or insufficient or excessive length/run-time. IndiePlaya may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate your account for submitting such material in violation of these Terms of Service.
c.
If no commercial transaction has occurred on any account within any thirty (30) day period, IndiePlaya reserves the right, in its sole discretion, to terminate such account or, as applicable, to remove any Content for which no commercial transaction has occurred within any thirty (30) day period. "Commercial transaction" is defined as any sale, rental or other license of Content using the Service.
d.
IndiePlaya maintains a zero tolerance policy against and strictly forbids (i) the transmission of unsolicited text messages (commonly known as spam), and (ii) the transmission of any form of adult content or use of related keywords. All messages that originate from the Service must comply with all applicable federal, state and local laws as well as with carrier regulations. IndiePlaya reserves the right to require changes as necessary to the Service, individual user accounts, databases, or other component(s) that do not comply with this policy, at its sole discretion. IndiePlaya also reserves the right to make any such modifications in an emergency in its sole discretion. Notwithstanding anything to the contrary herein, IndiePlaya shall not be liable for any damages incurred related to spam.
18.
DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
You understand that the Service is provided purely for your entertainment, and you agree that we will not be responsible for any damages that you claim result, directly or indirectly, from use of the Service, for any reason, including costs incurred while using the Service, the inaccessibility of the Service, or the costs associated with any claims you bring or try to bring against us.
We do not guarantee that we will continue to provide the Service, that the Service will be available at any particular time or from any particular place, or that they will continue to function in the manner that they currently function. You agree that we will not have liability to you or to others for these changes to the Service.
You agree not to hold us liable for damages you claim are caused by third parties who contact you using the Service or become aware of your identity through the use of the Service, and you understand that, while such behavior is a violation of these Terms of Service, we need not attempt to control or identify individuals who falsify their identities or provide false information to others through use of the Service.
IN NO EVENT SHALL INDIEPLAYA OR ANY OF ITS INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, PARENTS, SUBSIDIARIES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS OR OTHER CONTRACTORS (COLLECTIVELY, THE "INDIEPLAYA PARTIES"), BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING LOSS OF PROFITS, ARISING OUT OF OR IN ANY WAY RELATED TO USE OF THE SERVICE (INCLUDING ANY INFORMATION, PRODUCTS OR SERVICES ADVERTISED IN, OBTAINED ON OR PROVIDED THROUGH THE INDIEPLAYA WEBSITE).
YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK. NEITHER THE INDIEPLAYA PARTIES, NOR THEIR AFFILIATES OR RESPECTIVE INVESTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION OR SERVICE PROVIDED BY INDIEPLAYA.
THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, GROSS NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, EVEN IF THE CLAIM ALLEGES THAT THE INDIEPLAYA PARTIESâ CONDUCT WAS WILLFUL. YOU SPECIFICALLY ACKNOWLEDGE THAT THE INDIEPLAYA PARTIES ARE NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN NO EVENT WILL THE INDIEPLAYA PARTIES, OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICE, BE LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE. YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL CONTENT PROVIDED ON OR THROUGH THE SERVICE. IN ADDITION TO THE TERMS SET FORTH ABOVE NEITHER THE INDIEPLAYA PARTIES, NOR THEIR AFFILIATES, INFORMATION PROVIDERS OR CONTENT PARTNERS SHALL BE LIABLE, REGARDLESS OF THE CAUSE OR DURATION, FOR ANY ERRORS, INACCURACIES, OMISSIONS, OR OTHER DEFECTS IN, OR UNTIMELINESS OR UNAUTHENTICITY OF, THE INFORMATION CONTAINED WITHIN THE SERVICE, OR FOR ANY DELAY OR INTERRUPTION IN THE TRANSMISSION THEREOF TO THE USER, OR FOR ANY CLAIMS OR LOSSES ARISING THEREFROM OR OCCASIONED THEREBY. NONE OF THE FOREGOING PARTIES SHALL BE LIABLE FOR ANY THIRD-PARTY CLAIMS OR LOSSES OF ANY NATURE, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, PUNITIVE OR CONSEQUENTIAL DAMAGES.
THE TERMS OF THIS SECTION SHALL SURVIVE ANY TERMINATION OF THESE TERMS OF SERVICE OR YOUR ACCESS TO THE SERVICE.
19.
INDEMNIFICATION
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND (WITH COUNSEL ACCEPTABLE TO INDIEPLAYA, AS DETERMINED IN INDIEPLAYA'S SOLE DISCRETION) THE INDIEPLAYA PARTIES FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS OF DEBT, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES) ARISING FROM OR IN CONNECTION WITH: (I) YOUR USE OF AND ACCESS TO THE SERVICE OR CONTENT; (II) YOUR VIOLATION OF ANY TERM OF THESE TERMS OF SERVICE; (III) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT; OR (V) ANY CLAIM THAT ONE OF YOUR USER SUBMISSIONS CAUSED DAMAGE TO A THIRD PARTY. THIS DEFENSE AND INDEMNIFICATION OBLIGATION WILL SURVIVE ANY TERMINATION OF THESE TERMS OF SERVICE OR YOUR ACCESS TO THE SERVICE.
20.
TERMINATION
We may terminate your IndiePlaya account and/or access to the Service, including your use of Content, at any time and for any reason by providing notification of our decision to the email address that you most recently provided to us or by notifying you by another method. In addition, if you have not uploaded any films or other video Content to the Service or have not concluded a sale or rental of any such Content within the past thirty (30) days, we shall have the right, but not the obligation, to terminate your IndiePlaya account or otherwise prevent access to the Service in our sole discretion. You may terminate your IndiePlaya account at any time by emailing us at support@indieplaya.com; provided, however, that in the event you terminate your IndiePlaya account or such account is terminated by us for any reason whatsoever, you agree and hereby authorize us to fulfill any outstanding licenses granted by you in connection with your use of the Service. By way of example, if, prior to termination of your IndiePlaya account, you grant a 30-day rental license for Your Content to a third party using the Service, you agree and authorize us to fulfill the terms of that rental license in full, notwithstanding any prior termination of your IndiePlaya account. Otherwise applicable provisions of these Terms of Service, including, without limitation, the indemnification provisions set forth above, will survive any such termination by you or us.
21.
ACCESSIBILITY
You may access the IndiePlaya website from any location worldwide. However, the Service may be subject to certain restrictions. For example, you may only be able to access certain Content in specific territories or you may only be able to access certain Content at a specified time. If a particular aspect of the Service is restricted, we will prevent you from accessing that portion of the Service by using geo-fencing or other similar software. You agree not to attempt to access or circumvent such geo-fencing or other similar software to access the Service.
22.
FORCE MAJEURE
If by reason of failures of telecommunications or Internet service providers, labor disputes, riots, inability to obtain labor or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, acts of G0d or other causes beyond the control of IndiePlaya, IndiePlaya is unable to perform in whole or in part its obligations as set forth in these Terms of Service, then IndiePlaya shall be relieved of those obligations to the extent it is so unable to perform and such inability to perform shall not make IndiePlaya liable to you or others.
23.
MISCELLANEOUS
a.
Entire Agreement. These Terms of Service, together with the Privacy Policy at http://www.indieplaya.com/Company_privacy.do and any other legal notices published by IndiePlaya on the Service, shall constitute the entire agreement between you and IndiePlaya concerning the Service.
b.
Assignment. These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by IndiePlaya without restriction.
c.
Relationship of the Parties. Nothing in these Terms of Service shall be deemed to create an agency, employment, franchise or fiduciary relationship, partnership, joint venture or other form of joint enterprise between the parties.
d.
Notice. If we need to notify you, we will do so by email to the email address given by you during Registration. If you need to contact us, please do so by email to: support@indieplaya.com.
e.
Waiver. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and IndiePlaya's failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.
f.
Severability. If any provision of these Terms of Service or IndiePlaya's Privacy Policy is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
g.
Titles, etc. The titles in these Terms of Service are for convenience only and shall not be considered in construing any Terms of Service. The word "or" is not exclusive.
h.
Governing Law; Jurisdiction. These Terms of Service shall be governed by, and construed in accordance with, the laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and IndiePlaya that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction (and/or arbitrator, if applicable) located in San Mateo County, California, unless otherwise agreed to by both parties in writing. You agree that the Service shall be deemed (i) solely based in California, and (ii) a passive website that does not give rise to personal jurisdiction over IndiePlaya, either specific or general, in jurisdictions other than California.
i.
Dispute Resolution. We will do our best to resolve any dispute related to these Terms of Service or the Service. If a dispute arises between you and IndiePlaya, before resorting to litigation we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution ("ADR") procedures, such as mediation or arbitration, as alternatives to litigation. In the event either party elects arbitration, they shall initiate such arbitration through an established ADR provider (such as the American Arbitration Association or JAMS) mutually agreed upon by the parties, and any judgment on an award rendered by the arbitrator may be entered in any court of competent jurisdiction, as jurisdiction is defined in the preceding section. YOU AGREE THAT ANY CAUSE OF ACTION OR CLAIM BROUGHT BY YOU OR ON YOUR BEHALF ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION/CLAIM IS PERMANENTLY BARRED. YOU FURTHER AGREE THAT IF WE ARE DEEMED BY A COURT OF COMPETENT JURISDICTION TO BE THE PREVAILING PARTY ON ANY CAUSE OF ACTION OR CLAIM AGAINST YOU FOR BREACH OF ANY OF THESE TERMS OF SERVICE, YOU WILL BE RESPONSIBLE FOR ALL LEGAL COSTS AND EXPENSES INCURRED BY US (INCLUDING ATTORNEYS' FEES), YOUR OWN COSTS, AND ANY OTHER COSTS ORDERED BY THE COURT.
j.
Admissibility of Printed Versions. A printed version of these Terms of Service, IndiePlaya's Privacy Policy, and any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
k.
Compliance with Authorities. Nothing contained in these Terms of Service is in derogation of our right to comply with governmental, court, or law enforcement requests or requirements relating to your use of the Service or information provided to or gathered by us with respect to such use.
l.
Disclosures. The Service is offered by IndiePlaya LLC, located at 1900 S. Norfolk Street, Suite 350, San Mateo, CA 94403-1171. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.
You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Last updated: December 6, 2013
TM & © 2013 IndiePlaya, LLC All rights reserved.