Last Updated: January 30, 2020
This Cinefilium Terms of Service Agreement (the “Agreement” or “Terms of Service”) is made between Cinefilium, Inc. (“Cinefilium,” “we,” “us,” or “our”) and you, our customer (“you” or “your”). This Agreement governs your use of Cinefilium.com and our CINEFILIUM®-branded online video hosting and sharing services through our owned-and-operated websites, applications, and embeddable video players (collectively, the “Services”).
1. Acceptance
By creating an account, viewing videos, making a purchase, downloading our software, or otherwise visiting or using our Services, you accept this Agreement and consent to contract with us electronically.
If you are an entity other than a natural person, the person who registers the account or otherwise uses our Services must have the authority to bind the entity. In this context, “you” means both the entity and each person who is authorized to access the account.
We may update this Agreement by posting a revised version on our website. By continuing to use our Services, you accept any revised Agreement.
This Agreement includes our Privacy Policy and the addenda listed in Section 12 below. Please review our Privacy Policy to learn about the information we collect from you, how we use it, and with whom we share it.
2. Our Services
Service License: Subject to the terms hereof, we grant you access to our Services. This includes the right to:
Stream videos that you have the right to view;
Upload, store, and/or live stream videos, subject to your plan;
Embed our embeddable video player on third-party websites; and
Use all related functionality that we may provide.
Features: The features available to you will depend on your plan. We may change features from time to time. If you have a paid account, we commit to providing the core video hosting and streaming features of your plan (including the bandwidth and storage capabilities stated at the time of purchase) during your current service period.
We may restrict bandwidth or charge extra for the following uses of our player or video hosting tools (which should generally occur via our APIs (as defined below)): (1) plays on third-party sites without using our embeddable video player; (2) plays within third-party apps (e.g., mobile or connected TV apps); (3) plays when our player is connected to a third-party payment solution; or (4) plays when our player is connected to a third-party advertising solution.
Transactions: We may offer digital goods for sale. Purchases of Cinefilium On Demand videos are governed by our Cinefilium On Demand Viewer Agreement. Purchases of Cinefilium Stock footage and licenses are governed by our Cinefilium Stock License Agreement.
3. Accounts
Registration: You may create an account to use certain features we offer (e.g., uploading or live streaming videos). To do so, you must provide an email address. By creating an account, you agree to receive notices from Cinefilium at this email address.
Age Requirements: You must be at least 16 years old or the applicable age of majority in your jurisdiction, whichever is greater, to create an account or otherwise use our Services. If you wish to use the Services for a commercial purpose, you must be at least 18 years old. Individuals under the applicable age may use our Services only through a parent or legal guardian’s account and with their involvement. Please have that person read this Agreement with you and consent to it before proceeding.
Parents and Guardians: By granting your child permission to use the Services through your account, you agree and understand that you are responsible for monitoring and supervising your child’s usage. If you believe your child is using your account and does not have your permission, please contact us immediately so that we can disable access.
Account Security: You are responsible for all activity that occurs under your account, including unauthorized activity. You must safeguard the confidentiality of your account credentials. If you are using a computer that others have access to, you must log out of your account after each session. If you become aware of unauthorized access to your account, you must change your password and notify us immediately.
4. Subscription Plans
Cinefilium offers two types of plans:
Free trials and Discounts: We may offer free-trial or discounted subscriptions. When a free-trial period ends, your paid subscription begins (unless you have cancelled) and you must pay the full fee. If we provide a discount for the first subscription period, you must pay the discounted fee; in any renewal, you must pay the full fee.
Refund Policy: Subject to the terms hereof, Self-Serve subscribers who purchase plans directly from Cinefilium may cancel and receive a full refund of their initial purchase within five (5) days after purchasing.
Customers who have breached this Agreement or whose accounts were terminated in accordance with our Copyright Policy;
Customers who joined using a promotion that expressly disclaimed our refund policy;
Customers who have initiated a chargeback dispute;
5. Acceptable Use Policy
We may allow you to upload, live stream, submit, or publish (collectively, to “submit”) content such as videos, recordings, images, and text (collectively, “content”). You must ensure that your content, and your conduct, complies with the Acceptable Use Policy set forth in this Section 5. Cinefilium may (but is not obligated to) monitor your account, content, and conduct, regardless of your privacy settings. Cinefilium may take all appropriate actions to enforce its rights including removing specific videos or suspending or removing your account.
5.1 Copyright Policy
You may only upload content that you have the right to upload and share. Copyright owners may send Cinefilium a takedown notice as stated in our Copyright Policy if they believe Cinefilium is hosting infringing materials. We will, in appropriate circumstances, terminate the accounts of persons who repeatedly infringe.
5.2 Content Restrictions
You may not submit any content that:
Please see the Cinefilium Guidelines for guidance on how we interpret these terms.
5.3 Code of Conduct
In using our Services, you may not:
5.4 Prohibited Technical Measures
You will not:
5.5 Restricted Users
You may not create an account if you are a member of a terror or hate group. You may not purchase any goods or services from us if you reside in a country subject to a comprehensive ROMANIA sanctions program or are a Specifically Designated National (SDN) as designated by the ROMANIA Department of the Treasury.
5.6 Accessibility and Ratings
We provide means to allow you to include closed captioning in your videos. If required by applicable law, you must provide closed captioning in your videos.
We may allow you to filter videos based upon their user-defined content rating. We cannot guarantee that videos will be appropriately rated by others. You must rate your videos appropriately.
6. Licenses Granted by You
As between you and Cinefilium, you own and will retain ownership of all intellectual property rights in and to the content you submit. In order to allow Cinefilium to host and stream your content, you grant Cinefilium the permissions set forth below.
6.1 Your Video Content
By submitting a video, you grant Cinefilium permission to:
By enabling access to your video to any third party, you grant each such person permission to stream (and/or download or embed, as applicable) your video. For the purposes of this Section 6.1, your video includes its title, description, tags, and other metadata.
The license period begins when you submit the video to Cinefilium and ends when you or Cinefilium delete it; provided that Cinefilium may retain archival copies: (a) for a limited period of time in case you wish to restore it; (b) when the video is the subject of a takedown notice or other legal claim; or (c) when Cinefilium in good faith believes that it is legally obligated to do so.
6.2 Account Profile
You grant Cinefilium permission to use your name, likeness, biography, trademarks, logos, or other identifiers used by you in your account profile for the purpose of displaying such properties to the public or the audiences you have specified. You may revoke the foregoing permission by deleting your account. Cinefilium shall have the right to identify public profiles in its marketing and investor materials.
6.3 Other Content; Feedback
Content that is not covered by the licenses set forth in Sections 6.1, 6.2, or 6.3 shall be governed by this Section 6.4 (e.g., text you submit in comments). You grant Cinefilium a perpetual and irrevocable right and license to copy, transmit, distribute, publicly perform, and display such content through online means in connection with our Services. If you make suggestions to Cinefilium on improving our products or services, Cinefilium may use your suggestions without any compensation to you.
6.4 Scope of Licenses
All licenses granted by you in this Section 6: (a) are non-exclusive, worldwide, and royalty-free; (b) include the right and license to copy, use, distribute, publicly perform, and display the licensed work for the purposes stated above; and (c) include all necessary rights and licenses to allow us to exercise our rights and perform our obligations. By granting these licenses, you waive any so-called “moral rights” that you may have. Nothing in this Agreement shall be deemed a license “condition” applicable to Cinefilium; rather, any breach of a term by Cinefilium hereof shall give rise to, at most, a claim for breach of contract only. All licenses granted herein are in addition to any other licenses that you may grant (e.g., a Creative Commons license).
7. Your Obligations
7.1 Representations and Warranties
For each piece of content that you submit to or through Cinefilium, you represent and warrant that:
7.2 Indemnification
You will indemnify, defend, and hold harmless Cinefilium and its subsidiaries, parents, and affiliates, and their and our respective directors, officers, employees, and agents, from and against all third-party complaints, demands, claims, damages, losses, costs, liabilities, and expenses, including attorney’s fees, arising from or relating to: (a) the content you submit to or through the Services; and (b) allegations of actions or omissions by you that (regardless if proven) would constitute a breach of this Agreement.
8. Term and Termination
This Agreement begins when you first use our Services and continues so long as you use our Service or have an account with us, whichever is longer. Paid accounts will continue for the subscription period and will renew in accordance with Section 4 above. With respect to Basic (free) memberships, Cinefilium may terminate this Agreement at any time by providing thirty (30) days’ written notice, and users may terminate at any time by deleting their accounts.
If you breach this Agreement, Cinefilium may, at its option: (a) terminate this Agreement immediately, with or without advance written notice; (b) suspend, delete, or limit access to your account or any content within it; and (c) to the extent permitted by applicable law, retain any amounts payable to you (which you forfeit). If Cinefilium deletes your account for breach, you may not re-register.
In the event of any termination or expiration, the following sections will survive: Section 7.2 (Indemnification), Section 9 (Disclaimers), Section 10 (Limitation of Liability), Section 11 (Disputes, Arbitration, and Choice of Law), and Section 12 (General Provisions).
9. Disclaimers
CINEFILIUM PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU USE THE SERVICES AT YOUR OWN RISK. You must provide your own device and internet access.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CINEFILIUM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Among other things, Cinefilium makes no representations or warranties:
10. Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW: (A) CINEFILIUM SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, PROFITS, GOODWILL, DATA, OR OTHER INTANGIBLE LOSSES, EVEN IF CINEFILIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) CINEFILIUM’S TOTAL LIABILITY TO YOU, EXCEPT FOR CINEFILIUM’S CONTRACTUAL PAYMENT OBLIGATIONS HEREUNDER (IF ANY), SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO CINEFILIUM OVER THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM(S) OR ONE HUNDRED DOLLARS (USD $100), WHICHEVER IS GREATER.
11. Disputes, Arbitration, and Choice of Law
If you are dissatisfied with our Services for any reason, please contact us first so that we can try to resolve your concerns without the need for outside assistance.
11.1 Choice of Law
Any disputes relating to this Agreement or your use of our Services will be governed by the laws of New York State and the United States of America (with respect to matters subject to federal jurisdiction such as copyright), without regard to principles of conflicts of law. The arbitration agreement set forth in Section 11.3 will be governed by the Federal Arbitration Act.
11.2 Choice of Venue for Litigation; Jury Trial Waiver
Except for matters that must be arbitrated (as set forth below), you and Cinefilium agree that any action relating to this Agreement or your use of our Services must be commenced in the state or federal courts located in New York County, New York State, United States of America; you consent to the exclusive jurisdiction of those courts. IN ANY SUCH ACTION, CINEFILIUM AND YOU IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY.
11.3 Arbitration of Privacy Claims; Class Action Waiver
The exclusive means of resolving any Covered Privacy Claim (defined below) shall be BINDING ARBITRATION. The arbitration will be administered by JAMS under the JAMS Streamlined Arbitration Rules & Procedures, as modified by our Arbitration Procedures. If you are a consumer, as defined by JAMS in its Consumer Minimum Standards, you may request that the arbitration hearing be conducted in the area in which you reside. Otherwise, the hearing (if any) shall take place in New York County, New York State, United States of America. EACH PARTY WAIVES ITS RIGHT TO GO TO COURT, TO A TRIAL BY JURY, AND TO PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE PROCEEDING WITH RESPECT TO ANY COVERED PRIVACY CLAIM.
Overview: Arbitration provides a private dispute resolution process that is usually more streamlined and less formal than litigation. In an arbitration, your rights will be determined by a neutral third party called an arbitrator, and not a judge or jury. Both you and Cinefilium are entitled to fundamentally fair proceedings at every stage of the arbitration, including the hearing. The arbitrator will decide all issues relating to the dispute, including the question of arbitrability, and can grant any relief that a court could grant. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. For details on the arbitration process, see our Arbitration Procedures.
Definitions: A “Covered Privacy Claim” means any dispute or claim arising out of or relating to (a) Cinefilium’s collection, use, storage, analysis, or transfer of your Personal Information; (b) an alleged breach of our Privacy Policy; (c) an alleged data breach or unauthorized disclosure of data or content; or (d) an allegation that Cinefilium failed to comply with any privacy or data security right or obligation. “Personal Information” means any information about you, including your registration information (e.g., email address), payment information, location information, device information, biometric identifiers or information, IP address, and your activities (including viewing and search history), but does not include content that you upload (except to the extent the content contains personal information about you).
Small Claims Court Exception: Notwithstanding the above, each party has the right to bring an individual Covered Privacy Claim against the other in a small claims court of competent jurisdiction pursuant to Rule 1 of JAMS’ Minimum Consumer Standards. If one party files an arbitration that could be litigated in such a small claims court, the responding party may request that the dispute proceed in small claims court. If the responding party requests to proceed in small claims court before the appointment of the arbitrator, the arbitration shall be administratively closed. If requested after the appointment of the arbitrator, the arbitrator shall administratively close the arbitration so long as the proceedings are at an early stage and no hearing has occurred.
12. General Provisions
Reservation of Rights, Severability, Force Majeure: Cinefilium reserves all rights not expressly granted herein. Cinefilium’s rights and remedies are cumulative. No failure or delay by Cinefilium in exercising any right will waive any further exercise of that right. If any term of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that term will be limited or severed. Cinefilium will not be liable for any delay or failure caused by a force majeure event.
Relationship: You and Cinefilium are independent contractors of one another; neither party is an agent, partner, or joint venturer of the other. This Agreement binds the parties and their successors, personal representatives, and permitted assigns. You may not assign this Agreement to any person whose account has been terminated by Cinefilium or who is prohibited from registering; any such assignment will be void.
Third Parties: We may provide links to and integrations with websites operated by others. The website operator, not Cinefilium, is solely responsible for the content thereof, and your use of each such website will be subject to its terms of service. We may disable integrations with any third party at any time, with or without notice. Except as expressly stated herein, nothing in this Agreement confers any right on any third party.
Entire Agreement: This Agreement constitutes the entire understanding of the parties and supersedes all prior understandings regarding the subject matter hereof and may not be modified except in accordance with Section 1 or in a document executed by authorized representatives of Cinefilium. If you have a signed agreement with Cinefilium, any conflicting term of that agreement will prevail over the terms hereof, but only as to the subject matter of that agreement.
Addenda: This Agreement incorporates the following documents (and no others) by reference:
Notices: You must send any notices of a legal nature to us by email or at: contact@cinefilium.com
