Video Upload, Editing, and Sharing Program Terms and Conditions
PLEASE READ VERY CAREFULLY THESE TERMS AND CONDITIONS AND THE PROGRAM FREQUENTLY ASKED QUESTIONS LOCATED ON THE PROGRAM WEBSITE AT www.HomeMovieDepot.com (THE "FAQ") BEFORE REGISTERING FOR THE Home Movie Depot Video editing, sharing and uploading program(THE "PROGRAM"). THE TERMS AND CONDITIONS OF THIS CONTENT HOSTING SERVICES AGREEMENT (THE "AGREEMENT") GOVERN YOUR PROVISION OF CONTENT TO Home Movie Depot (INCLUDING, IF APPLICABLE, YOUR DOWNLOAD AND USE OF THE VIDEO UPLOADER SOFTWARE (THE "UPLOADER") FOR POSSIBLE INCLUSION IN THE PROGRAM. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO PARTICIPATE IN THE PROGRAM OR TO DOWNLOAD OR USE THE UPLOADER. THIS AGREEMENT BETWEEN YOU (AS DEFINED BELOW) AND Home Movie Depot INC. AND ITS AFFILIATES ("Home Movie Depot" OR "WE" OR "US") IS SUBJECT TO CHANGE BY Home Movie Depot AT ANY TIME IN ITS SOLE AND ABSOLUTE DISCRETION. BY CLICKING ON THE "I ACCEPT" BUTTON BELOW OR BY SIGNING THIS AGREEMENT YOU (I) ACCEPT THIS AGREEMENT EITHER FOR YOURSELF OR ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, (II AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS AND (III) HAVE ENTERED INTO A BINDING AGREEMENT BETWEEN YOU AND Home Movie Depot INC. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THESE TERMS AND CONDITIONS.
By entering into this Agreement, You are requesting to participate in the Program where Home Movie Depot provides hosting services at the direction of content providers who seek to make their content available to end users, subject to the terms of this Agreement. "You" means you or, if you are entering into this Agreement on behalf of your employer or another entity, then "You" means that employer or entity and affiliates. We may revise the terms of this Agreement by providing the new terms and conditions for You to accept or reject when You next log in to the Program and by sending notice to You at your email address of record. You must accept or reject the new terms and conditions within five (5) days from the date the notice was sent to You, by logging into the Program at www.HomeMovieDepot.com or as otherwise designated in writing by Home Movie Depot, and accepting or rejecting the new terms. If You do not accept or reject the new terms within the five (5) day period, You will be deemed to have accepted and be bound by the new terms. If You do not wish to be bound by the new terms, you must terminate this Agreement but You will no longer be able to participate in the Program.
1. Program Participation
Participation in the Program is subject to Home Movie Depot's prior approval and Your continued compliance with the terms of this Agreement. We reserve the right to refuse participation to any applicant or participant at any time in our sole and absolute discretion, and to withdraw content, suspend, restrict and/or terminate the services provided under this Agreement and Your participation in the Program, immediately without notice to You and without liability to Home Movie Depot, for any reason, including repeat violations of our copyright policy or other Program policies. You must register for the Program and create an account in order to participate in the Program. To register and create an account, go to www.HomeMovieDepot.com. Multiple accounts held by the same individual or entity are subject to immediate termination unless expressly authorized in writing by Home Movie Depot (including by electronic mail). You are solely responsible for keeping your email address and other contact information updated.
2. Your Content
After entering into this Agreement, You may designate content for hosting and display to end users (i) by uploading such content directly to Us, by sending copies of Your content to Home Movie Depot at the address located at www.HomeMovieDepot.com , Attention: Home Movie Depot Video Upload Program, in a format designated by Home Movie Depot, or to such other address as designated by Home Movie Depot, and/or by otherwise making such content available to Us; and (ii) by providing additional information about Your content in the form provided online when You upload Your content and/or by submitting a completed metadata form as provided by Home Movie Depot to You (each, a "Metadata Form") to Home Movie Depot at service@HomeMovieDepot.com. All content so designated by You and contained within or provided by You in association with such content, including but not limited to all images, closed captioning, metadata and music, is referred to collectively as "Authorized Content."
3. Use of Content
By entering into this Agreement and uploading, sending or otherwise making available Your Authorized Content to Home Movie Depot, you are directing and authorizing Home Movie Depot to, and granting Home Movie Depot a royalty-free, non-exclusive right and license to, host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, facilitate the sale or rental of copies of, analyze, and create algorithms based on the Authorized Content in order to (i) host the Authorized Content on Home Movie Depot's servers and partners of Home Movie Depot servers, (ii) index the Authorized Content; (iii) display, perform and distribute the Authorized Content, in whole or in part, in the territory(ies) designated in the Metadata Form, in connection with Home Movie Depot products and services now existing or hereafter developed, including without limitation for syndication on third party sites; and in connection with each of the uses, if any, of the Authorized Content authorized in the video information page (the "Video Information Page") which will be made available to You no sooner than at the time Home Movie Depot enables any of the features designated on the Video Information Page This license gives Home Movie Depot the right to display Your Authorized Content via streaming and/or downloading technologies, and to display limited excerpts of Your Authorized Content for no fee to the end user. Home Movie Depot may in its sole discretion display a link or links to the website You designate (subject to Home Movie Depot's approval) in the Metadata Form in connection with any display of Your Authorized Content, and to display links to third party commercial retailer web sites where purchases of the Authorized Content may be available, to the extent such third party commercial retailer web site serves as a distributor of the Authorized Content. You expressly agree that any and all links provided by You shall function properly and effectively to allow end users to transfer immediately to the intended and indicated site(s), and that You are solely responsible for maintaining and updating as necessary any such links. Failure to do so may result in immediate termination without notice to You. Unless You specify otherwise in the Video Information Page, Home Movie Depot reserves the right to display advertisements in connection with any display of Your Authorized Content. Notwithstanding the foregoing, Home Movie Depot is not required to host, index, or display any Authorized Content uploaded or otherwise provided to Home Movie Depot, and may remove or refuse to host, index or display any Authorized Content. Home Movie Depot is not responsible for any loss, theft, intellectual property infringement or damage of any kind to the Authorized Content.
4. Promotional License, Brand Features, Publicity
You hereby grant Home Movie Depot a non-exclusive, world-wide, royalty-free license to use Your name and logo ("Brand Features"), in connection with Your Authorized Content, and to use limited excerpts from Your Authorized Content for advertising or promotional purposes, including without limitation the right to publicly display, perform, reproduce and distribute such excerpts and Brand Features on the Internet and in presentations marketing materials, customer lists, financial reports and Web site listings of customers. If this Agreement is terminated, Home Movie Depot may continue to use such excerpts and Brand Features in printed (versus "online") materials that are in existence as of the date of termination until such materials are depleted or are redesigned, whichever comes first.
You may use the Uploader for the sole purpose of providing Your Authorized Content to Home Movie Depot. You must immediately notify Us of any known unauthorized use of the Uploader. You may not use the Uploader for any other reason, including but not limited to (i) selling or otherwise redistributing any aspect of the Uploader, (ii) modifying, adapting, translating, or reverse engineering any portion of the Uploader; (iii) attempting to break security, access, tamper with or use any unauthorized areas of the Uploader; (iv) removing any copyright, trademark or other proprietary rights notices contained in or on the Uploader; (v) attempting to collect or maintain any information about other users of the Uploader or other third parties for unauthorized purposes; (vi) transmitting any viruses, worms, defects, Trojan horses or other malicious code or items of a destructive nature; or (vii) using the Uploader for any unlawful, harassing, abusive, criminal or fraudulent purpose.
6. Proprietary Rights
Nothing contained in this Agreement conveys any ownership right to Us in any of the Authorized Content, or other materials provided by You. You acknowledge that as between You and Home Movie Depot, Home Movie Depot owns all right, title and interest in and to the Program, Home Movie Depot products and services, and the Uploader and portions thereof, including without limitation, all intellectual property rights.
You agree not to disclose Home Movie Depot Confidential Information without Our prior written consent. "Home Movie Depot Confidential Information" includes without limitation: (i) all Home Movie Depot software, technology, programming, technical specifications, materials, guidelines and documentation relating to this Program; (ii) any click-through rates, financial information (including pricing), business information, including operations, planning, marketing interests, products, and any other reporting information (including revenues, if any, paid to You by Home Movie Depot) provided by Home Movie Depot; and (iii) any other information designated in writing by Home Movie Depot as "Confidential" or an equivalent designation or that would otherwise be reasonably considered confidential or proprietary under the circumstances. It does not include information that has become publicly known through no breach by You, or information that has been (a) independently developed without access to Home Movie Depot Confidential Information, as evidenced in writing; (b) rightfully received by You from a third party without a breach of confidentiality by such third party; or (c) required to be disclosed by law or by a governmental authority.
Your Authorized Content will not be listed for sale.
9. Disclaimer and Limitation of Liability
THE PROGRAM, Home Movie Depot PRODUCTS AND SERVICES, ANY COPY PROTECTION, SECURITY FEATURES AND THE UPLOADER ARE PROVIDED "AS IS" WITH NO WARRANTIES WHATSOEVER. Home Movie Depot AND ITS LICENSORS AND THIRD-PARTY SERVICE PROVIDERS (INCLUDING BUT NOT LIMITED TO TELECOMMUNICATIONS, SERVER AND HOSTING SERVICES, POWER SUPPLIERS, AND OTHER SERVICE PROVIDERS (COLLECTIVELY, "SERVICE PROVIDERS") EXPRESSLY DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, AND PERFORMANCE OF THE PROGRAM, ANY TECHNOLOGY USED IN CONNECTION THEREWITH, THE AUTHORIZED CONTENT, TERRITORY RESTRICTION FEATURES AND TECHNOLOGY, AND THE UPLOADER, THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AND WARRANTIES AS TO THE PERFORMANCE OF COMPUTERS OR NETWORKS. Home Movie Depot, ITS LICENSORS AND SERVICE PROVIDERS MAKE NO WARRANTY THAT ANY Home Movie Depot PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, TIMELY OR ERROR-FREE OR THAT THE RESULTS OR INFORMATION OBTAINED FROM USE OF Home Movie Depot PRODUCTS OR SERVICES WILL BE ACCURATE OR RELIABLE. EXCEPT FOR ANY PAYMENT OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT SHALL Home Movie Depot, ITS LICENSORS AND SERVICE PROVIDERS BE LIABLE UNDER THIS AGREEMENT FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF WE OR THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU UNDERSTAND AND AGREE THAT YOU USE THE PROGRAM AND THE UPLOADER AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR AUTHORIZED CONTENT, AND FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE UPLOADER.
10. Right to Use
You Must Have the Right to Use All of the Images, Music and Data of Any Sort in Your Authorized Content, and You Must Have the Right to Grant the Licenses in this Agreement. By entering into this Agreement and uploading or otherwise providing Your Authorized Content to Home Movie Depot, You represent and warrant to Home Movie Depot the following: (a) You are at least 18 years of age if You are a natural person; (b) all of the information provided by You to Home Movie Depot to enroll and participate in the Program is correct and current (including without limitation information You provide in the Metadata Form); (c) the Authorized Content is not, in whole or in part, pornographic or obscene; (d) You hold and will continue to hold the necessary rights, including but not limited to all copyrights, trademark rights and rights of publicity in and to Your Authorized Content and Your Brand Features to enter into this Agreement and to grant the rights granted herein; (e) You have the legal right and authority to enter into this Agreement, to perform the acts required of You under the Agreement, and to grant the rights and licenses described in this Agreement. You further represent and warrant that (i) the Authorized Content and the rights and licenses granted to Home Movie Depot under this Agreement and Home Movie Depot's authorized use of Your Authorized Content (including the public display, public performance, distribution and reproduction of Your Authorized Content): (i) do not and will not violate any applicable law, statute, ordinance or regulation and (ii) do not breach and will not breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort or contract theories and (ii) that the web site (including products and services therein) You designate in the Metadata Form to which Home Movie Depot may display a link in connection with the display of the Authorized Content does not and will not violate or encourage violation of any applicable law, statute, ordinance or regulation.
11. Your Obligation to Indemnify
You agree to indemnify, defend and hold Home Movie Depot and its respective directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss and expense (including reasonable legal fees, damage awards, and settlement amounts) brought against any Indemnified Person(s) arising out of, or related to or which may arise from Your Authorized Content, Your Brand Features, Home Movie Depot's authorized use of any of the foregoing, Your use of the Program and the Uploader, and/or Your breach of this Agreement. The Indemnified Persons may in their sole discretion control the defense, at Your expense, of any claim indemnified herein. In the event that the Indemnified Parties determine not to control the defense of any claim hereunder, any Indemnified Person may join in defense with counsel of its choice at its own expense. You will not settle or resolve any such claim in a manner that imposes any liability or obligation on Home Movie Depot or affects Home Movie Depot's rights in connection therewith without the advance written approval of Home Movie Depot, which will not be unreasonably withheld or delayed.
12. Termination; Withdrawal of Content
Either party may terminate this Agreement immediately upon written notice to the other party if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business. You may terminate this Agreement for convenience upon thirty (30) days prior written notice. You may withdraw Your Authorized Content from public display in the Program by providing Home Movie Depot with a written request as set forth in the FAQ. Home Movie Depot will use commercially reasonable efforts to remove Your Authorized Content from public display within thirty (30) days from receipt of notice of termination or withdrawal. Home Movie Depot may at any time in its sole discretion and without liability to Home Movie Depot terminate the Program or any product, service or feature offered in the Program, terminate this Agreement, or withdraw any Authorized Content in the Program.
13. Privacy and Information Rights
a. Notices. Unless provided for to the contrary in this Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Agreement shall be sent (a) if to You at the electronic mail address You provide in registering for the Program and (b) if to Home Movie Depot to such address as provided at www.HomeMovieDepot.com/corporate/address.php or as otherwise provided in writing for such notice purposes. A second copy of every notice to Home Movie Depot shall be sent to the same address, "Attn: Legal Dept." Notice shall be deemed received (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail (iv) upon verification of receipt via facsimile, provided that such notice is also sent simultaneously via first class mail, or (v) by electronic mail when sent by Home Movie Depot only. Contact information shall be updated as necessary to ensure that each party has current information regarding all such contacts. b. Miscellaneous. You may not resell, assign or transfer any of Your rights hereunder. Any such attempt shall be null and void. The relationship between Home Movie Depot and You is not one of a legal partnership relationship, but is one of independent contractors. The words "You" or "Your" shall also mean heirs, executors, administrators, successors, legal representatives and permitted assigns. This Agreement does not affect any right that either party would have had, or shall have, independent of the Agreement including rights relating to Authorized Content under applicable law, including but not limited to copyright law. Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet or other network disturbances. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches. The section titles used in this Agreement are purely for convenience and carry with them no legal or contractual effect. Except as to any prior version of this Content Hosting Service Agreement between you and Home Movie Depot that sets forth the license to and use by Home Movie Depot of your Authorized Content, (i) nothing in this Agreement is intended to be, or will be construed as, altering, revising, modifying or otherwise amending any other content hosting services agreement; and (ii) in the event of a conflict between this Agreement and any other content hosting service agreement that You enter into with Home Movie Depot with respect to Your Authorized Content, the terms of that other content hosting services agreement shall govern. Except as otherwise set forth herein, this Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof. This Agreement shall be construed as if jointly drafted by the parties. This Agreement shall be governed by the laws of the State of Missouri, without regard to its principles of conflicts of law. Any litigation hereunder shall be brought in any state or federal court of competent jurisdiction in Boone County, Missouri; the parties agree that venue shall be proper in, and consent to the personal jurisdiction of, such courts. The parties specifically exclude from application to the Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The provisions of Sections 4, 5, 6, 7, 8, 9, 11, 13, and 14 shall survive any expiration or termination of this Agreement.