Cinebody Terms of Service
Version: August 2024
INTRODUCTION
Welcome to Cinebody, operated by Super 6 LLC d/b/a Cinebody ("Cinebody," "we," "our" or "us"). Please read the following terms of service ("Terms") carefully as they contain important legal terms and conditions that you accept when you access our Site, or purchase or use products or services from the Site, through any means (including mobile apps).
For purposes of these Terms, "Site" includes www.cinebody.com, the Platform (as defined in Part A) and any other website or portal managed by us through which we interact with you or promote our products or services. Also for purposes of these Terms, "you" and "your" mean you, individually as a natural person, and, if applicable, the organization on whose behalf you are accessing the Site, jointly and severally.
If you purchase any hardware or other tangible items (such as a Cinebody smartcase) from us, your purchase is governed by the Cinebody terms of sale provided to you in connection with your purchase. If you download any Cinebody software (such as our mobile app), your access to and use of that software is also governed by the Cinebody end user license agreement that you must accept when downloading the software.
BY ACCESSING OR USING ANY PART OF THE SITE, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF PART B, BELOW, WHICH APPLIES TO ALL USERS OF THE SITE INCLUDING CASUAL VISITORS. IF YOU CHOOSE TO REGISTER AN ACCOUNT THROUGH THE SITE (E.G., TO ACCESS THE PLATFORM AND SUBMIT CONTENT), YOU AGREE TO BE BOUND BY THE TERMS OF PART A IN ADDITION TO THE TERMS OF PART B.
These terms include an obligation to arbitrate most claims arising hereunder. YOU ACKNOWLEDGE AND AGREE THAT YOU AND CINEBODY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
PART A. TERMS APPLICABLE TO REGISTERED USERS
1. Eligibility. You may only register on the Site if you agree to these Terms. You certify that you are of legal age to form a binding contract. If you are using the Site on behalf of an organization (such as your employer), you certify that you have the authority to do so and to bind that organization to these Terms. You agree to provide and maintain accurate, current and complete information about yourself as prompted by the Site's registration process. If you do not meet or qualify for the requirements set forth in this section, please do not register for or use the Site.
2. Platform Overview. The Site includes a restricted-access platform portal allowing registered users to upload, share, edit and otherwise collaborate on video clips and other multimedia in connection with the promotion of the brands associated with their account (the "Platform"). Use of the Platform is governed by these Terms and the other agreements referenced in these Terms, where applicable. One or more "teams" of users may be created for each brand promoted under the account.
3. Platform User Types. The Platform is designed to have different user types having different roles and permissions on the Platform. Your user type is indicated on your registration page or other account registration correspondence. Full descriptions of each user type can be found at cinebody.com. Currently, to summarize, the account " ADMINS" are responsible for creating, paying for and managing an organization's account and the associated content on behalf of the organization they are supporting, including the creation of one or more teams that then produce one or more campaigns. The account ADMINS can designate individual team ADMINS who share the same responsibilities in relation to a team, except for payment administration and the creation of other teams. The ADMINS are responsible for selecting, directing and editing Content (as defined below). The "FILMERS" are users (including members of the public) that can join a public campaign, or be added by ADMINS to private campaigns, to submit Content only.
4. Registration. ADMINS are responsible for setting up its own organization account and the teams on which the ADMIN and other users may then join as FILMERS. User account registration through the Site is required in order to access the Platform. If you choose to create a user account using the social media account linking options presented to you (e.g., sign-in through Facebook), you authorize us to collect, process and store your social media account information in accordance with our Privacy Policy. You are responsible for maintaining the confidentiality of your user credentials and are responsible for all activities that occur under your username. Except as set forth at com,the organization associated with your account is responsible for all conduct, usage and fees arising under the account (including all teams). You agree to (a) immediately notify Cinebody of any unauthorized use of your account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Cinebody may require you to change or update your username or password from time-to-time.
5. Access Rights. Subject to your compliance with these Terms, including payment of any fees due on your account, Cinebody grants you a limited, non-exclusive and non-transferable right to use the Platform for purposes of promoting the brands for whom you have been assigned as a team member. Team membership may be revoked by Cinebody or the brand at any time in their discretion. Cinebody reserves all ownership rights, title and interest in and to all aspects of the Platform and Site and any content, materials, or information therein, (other than your Content) and any software made available in connection therewith and in each case any derivatives, enhancements, or improvements thereto. You may not modify the Platform infrastructure, create derivative works of the Platform, or reverse-engineer, reverse-compile, or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. You may use the Platform only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Platform after any termination or expiration of your agreement to these Terms for any reason. You may not use the Platform for any competitive purpose, including without limitation use or review of the Platform in connection with creating a competing service.
6. Specific User Terms.
6.1 ADMINS. If you are an ADMIN, you understand and agree that you are entering into these Terms on behalf of your organization and are subjecting your organization to responsibility for all conduct, usage and fees arising under the organization's account (including compliance with these Terms by its users), whether authorized or unauthorized. You hereby grant all authorized users and Cinebody a worldwide, fully-paid up, transferable, royalty-free, non-exclusive license and right to reproduce, publicly display and otherwise promote the brands associated with your account in connection with their roles and permissions on the Platform, and you represent and warrant that you have all rights, title and authority necessary to grant this license. You agree to screen all submitted Content in order to ensure the Content's legality and appropriateness. You are responsible for adding and removing FILMERS (as well as other ADMINS, where applicable) to and from your team or account. You will serve as Cinebody's primary point of contact for your assigned team (or the entire account, in the case of enterprise organizational ADMINS).You are responsible for engaging FILMERS to access your account and promoting the brands associated therewith, although Cinebody may agree to help locate FILMERS on your behalf to add to your account. You may enter into separate written agreements with FILMERS at your discretion (i.e., you may offer compensation or subject them to your company policies and procedures), but those separate agreements will have no force or effect against or on these Terms as they relate to Cinebody. You agree that your engagement of FILMERS is non-exclusive, and that Cinebody or other brands may recruit and reuse FILMERS for other campaigns. Cinebody does not make any representations or warranties about the FILMERS, or any content they may create. If you are an ADMIN you may also be a FLIMER to the extent you upload any CONTENT to the platform.
6.2 FILMERS. If you are a FILMER, you understand and agree that all footage and other Content (as defined below) that you upload to the Platform, or otherwise collect for the benefit of or using resources provided by, an organization where you are part of their team (the "Client") is the sole property of the Client (or the owner of the brand supported by the Client, if agreed between such brand owner and the Client) and Client shall own all Content and all intellectual property rights therein. You hereby irrevocably and unconditionally assign to the Client any and all rights, title and interest that you may have in your Content and all intellectual property rights therein, unless otherwise agreed in writing by the Client. You are prohibited from storing, processing, sharing or using the Content for any purpose not expressly authorized by the Client. Any and all goodwill and other derivative value manifesting in the Client's brands that arise out of your activities hereunder shall inure to and be for the sole benefit of the Client. For clarity, you acknowledge that Client will have the right to use any likeness, image, biographical information or other personal information in such Content, and you will not have any right of review or approval. If any intellectual property rights, including moral rights, in the Content cannot (as a matter of law) be assigned by to Client as provided above, then (a) you waive the enforcement of such rights and all claims and causes of action of any kind against Client with respect to such rights, and (b) to the extent you cannot (as a matter of law) make such waiver, you grant to Client an exclusive, perpetual, irrevocable, worldwide, fully-paid license, with the right to sublicense through multiple levels of sublicensees, under any and all such rights to (i) reproduce, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use the Content in any medium or format, whether now known or hereafter discovered, (ii) use, make, have made, sell, offer to sell, import, and otherwise exploit any product or service based on, embodying, incorporating, or derived from the Content, and (iii) exercise any and all other present or future rights in the Content.You will execute any agreements reasonably proposed by Cinebody or the Client to memorialize and effectuate such assignment. For clarity, the restrictions set forth in this section may not apply to the extent that you are an employee or contractor of the Client and are subject to a separate written agreement with the Client, or to Client company policies applicable to you, in which case that agreement or policy shall apply as between you and the Client and take precedence over these Terms.
7. Content. Cinebody does not claim ownership rights in any footage, data, audio, video, photos, graphics, images or other materials or content that you make available or use in connection with the Platform ("Content"). Content is owned by the Client unless otherwise provided herein or agreed by the Client in writing. Notwithstanding the foregoing, you hereby grant Cinebody a non-exclusive, worldwide, perpetual, irrevocable, fully paid up, royalty-free and transferable right and license, with the right to sublicense through multiple levels, to reproduce, adapt, copy, modify, create derivative works of, distribute, publicly perform, publicly display, digitally transmit, and otherwise use your Content in any medium or format, whether now known or hereafter discovered, in order to operate the Platform and for the promotional purposes specified in the following Article 8. Further,you understand and agree that your Content is accessible, downloadable and usable by other Platform users and any members of the public to whom the Content is made available by you or your team.You represent and warrant to Cinebody that all Content is your own original work, and that you have all right, title and necessary in and to the Content for such purposes, including that you have not and will not collect or upload Content depicting (a) natural persons, without such persons' express written permission or (b) third-party brands, logos or other proprietary information or intellectual property without the owner's permission; or (c) people under the age of 13. You represent and warrant to Cinebody that the Content will not include, endorse, or advocate any content or features that would be a violation of applicable laws, or would be considered harmful, misleading, deceptive, fraudulent, unfair, immoral, indecent, pornographic, obscene, sexually explicit material, excessively profane, racist, ethnically offensive, threatening, excessively violent, defamatory, hate speech, gambling, discriminatory, malware, illegal drugs or arms trafficking, alcohol, tobacco, prescription drugs or weapons. AS BETWEEN YOU AND CINEBODY, YOU AND YOUR ORGANIZATION ARE SOLELY RESPONSIBLE FOR ALL DATA USAGE AND OTHER FEES IMPOSED ON YOU BY YOUR CELLULAR AND INTERNET SERVICE PROVIDERS AS A RESULT OF YOUR SUBMISSION OF CONTENT AND OTHER PLATFORM USAGE. You agree to indemnify and hold Cinebody harmless for any violation of this Article 7.
8. Public Shoots. The Platform currently allows ADMINS to create public marketing campaigns (such as video shoots) and invite members of the public to participate in the campaign by registering for the Platform and inputting a specified access code or clicking a custom link.The deployment of public marketing campaigns does not relieve the organization associated with each account (e.g., the brand owner) of its responsibility for all usage, conduct and fees arising under its account. ADMINS are therefore strongly encouraged to carefully monitor and manage all such public campaign participation.
9. Publicity; User Database. Subject always to the Privacy Policy and any other privacy or confidentiality obligations undertaken by Cinebody, you hereby authorize Cinebody to (a) publish portions of your Content as set forth herein and (b) refer to your brand and the Client, in each case (a) or (b), in connection with customer lists, sales presentations, media statements and advertising materials. You also authorize us to include you in a user database searchable by other users (i.e., users interested in inviting you to participate in a campaign) in accordance with our Privacy Policy.
10. No Responsibility for Content or Incentives.
10.1 Content. Cinebody does not and cannot review all Content on the Platform and disclaims all responsibility for the Content. However, Cinebody reserves the right to remove, delete, move or edit any Content that it, in its sole discretion, deems abusive, defamatory, obscene or in violation of the law or a third party's rights (including intellectual property rights).
10.2 Incentives. The Platform may enable organizations to promote, incentivize and otherwise offer compensation in exchange for the submission of Content (e.g., free tickets to a show). All such promotions, incentives and other compensation are the sole responsibility of the offering organization. In no event shall Cinebody be responsible for fulfilling, or facilitating any disputes relating to, any promotions, incentives or other compensation. Cinebody only provides information about such promotions as a courtesy to its users and does not make any representations or warranties about them. Brands are solely responsible for ensuring that their promotions are run in accordance with applicable laws.
11. Customer Accounts. The following sections apply primarily to the ADMINS responsible for managing Subscriptions.
11.1 Subscriptions. Cinebody currently offers subscription packages set forth at cinebody.com/pricing (subject to change), as well as a free (or "freemium") version that Cinebody may offer from time-to-time and remove upon notice at its discretion. If you purchase a paid subscription to the Platform ("Subscription"), you will be charged the initial amount displayed at the time of checkout for the first order in the Subscription ('Subscription Cost"). In addition to the Subscription Cost, you may have the ability to upgrade your storage limit, add more teams (where applicable), or otherwise purchase add-on features (collectively, "Add-Ons") at an additional cost. Currently, you may pay for Subscriptions and Add-Ons via credit card, direct deposit or invoice as may be set forth at cinebody.com/pricing. Subscriptions are payable immediately at checkout, , and in advance of each pay period (e.g., monthly, quarterly, or annual) unless otherwise agreed in writing. Fees for Add-Ons are due and payable in advance, or may be billed in arrears, as set forth at cinebody.com/pricing Minimum Subscription term commitments apply to certain packages.
11.2 Subscriptions auto-renew. Your account will be charged the Subscription Cost (and Add-On, as applicable) in advance of each pay period ("Renewal Payment") until you cancel the Subscription as set forth below. Depending on the billing option chosen by you at registration, the Renewal Payment will be charged to your account on or around the same day of the month as the initial payment was made for every pay period during the Subscription. Cinebody reserves the right to suspend all customer and user account activity in the event of payment default. Late payment accrues interest at a rate of 1% per month.
11.3 Pricing and Payment. Prices are subject to change at any time and, once such changes are posted at cinebody.com/pricing("Renewal Payment"), and will become effective at the beginning of the next billing cycle. You agree that Cinebody reserves the right to process your payment directly or through such other payment processing service as indicated on the Platform. Cinebody is not responsible for any charges or expenses (e.g., for overdrawn accounts, etc.) resulting from charges billed by Cinebody. All charges and fees paid are non-refundable unless otherwise agreed in advance in writing by Cinebody. Cinebody's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Cinebody's income.
11.4 Data Storage Fees. Your Subscription Cost entitles you to a specified data storage quota. Additional fees apply to data storage in excess of your quota and will be added as an Add-On. We will use good-faith efforts to notify you when you are about to exceed your quota. In any event, YOU ARE RESPONSIBLE FOR, AND AUTHORIZE US TO CHARGE YOU FOR, ALL EXCESS DATA STORAGE FEES THAT ACCRUE UNDER YOUR ACCOUNT, IRRESPECTIVE OF WHETHER YOU AUTHORIZED THE USERS LINKED WITH YOUR ACCOUNT TO ACCRUE SUCH FEES. WE ARE ALSO NOT RESPONSIBLE FOR ANY DATA USAGE AND OTHER FEES IMPOSED ON YOU BY YOUR CELLULAR AND INTERNET SERVICE PROVIDERS AS A RESULT OF YOUR SUBMISSION OF CONTENT AND OTHER PLATFORM USAGE.
11.5 Cancellation of Subscriptions. In order to cancel a Subscription and no longer make a Renewal Payment ("Cancel"), you must follow the instructions to cancel as set forth on the platform. Cancellations are effective as of the end of the then-current term. There is no early cancellation, and n refunds of prepaid fees are given in connection with cancellations. Please note that if you cancel (or if we terminate your account) all content and materials (including all Content) may be deleted in our discretion. You may also pause or suspend your account as set forth on the platform, so long as you pay the applicable storage fees during such paused period. If you pause or suspend your account you may not have access to your content or team information.
12. Monitoring of Content. You acknowledge, consent and agree that Cinebody may access, preserve and disclose your account information or Content if required to do so by law or in a good-faith belief that such access, preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Cinebody, its users or the public.
PART B. TERMS APPLICABLE TO REGISTERED AND UNREGISTERED USERS OF THE SITE
1. Access Rights. Except for any additional rights granted to registered users in Part A hereto, subject to your compliance with these Terms, Cinebody grants you a limited, non-exclusive and non-transferable right to use the Platform for your own internal non-commercial purposes. Cinebody reserves all ownership rights, title and interest in and to all aspects of the Platform and Site and any content, materials, or information therein, (other than your Content) and any software made available in connection therewith and in each case any derivatives, enhancements, or improvements thereto. You may not modify the Platform infrastructure, create derivative works of the Platform, or reverse-engineer, reverse-compile, or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. You may use the Platform only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Platform after any termination or expiration of your agreement to these Terms for any reason. You may not use the Platform for any competitive purpose, including without limitation use or review of the Platform in connection with creating a competing service.
2. Disclaimer of Warranty. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND CONTENT FROM OTHER USERS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. IN PARTICULAR, Cinebody MAKES NO WARRANTY THAT THE PLATFORM OR ITS CONTENT WILL BE ACCURATE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
3. Privacy. Cinebody respects the privacy of others. Any information that you provide to Cinebody through the Platform will be stored or processed in accordance with and is subject to Cinebody's Privacy Policy, which can be found at https://www.cinebody.com/privacy-policy/.
4. Third Party Content and Software and Linking. Although we may reference, advertise, hyperlink or otherwise make available third-party products, services or content to you, your use of such third-party products, services and content is subject to the respective terms and conditions imposed by the applicable third party that owns or offers such products, services or content, and the agreement for your use thereof will be solely between you and such third party unless otherwise expressly set forth on the Platform. Cinebody makes no warranty with regard to, and disclaims any and all responsibility for, any and all such third-party products, services or content. All third party products, services, and content are provided AS-IS and WITHOUT WARRANTY. It is your responsibility to become familiar with the third-party products, services and content, including the third party's privacy policy and terms of use, and to contact that third party with any concerns.
5. Suspension and Termination of Access. Cinebody reserves the right to suspend or terminate your account and use of the Platform, at any time, without notice, for the following reasons: (a) breach of these Terms, including policies or guidelines set forth by Cinebody; (b) Content collected or used without permission from third parties (such as persons recorded on video without their consent); (c) conduct that Cinebody believes is harmful to other users of the Site or the business of Cinebody or other third parties; (d) Cinebody discontinues access to the Platform (temporarily or permanently) to its customers or (e) any other reason in Cinebody's discretion.
6. Availability. Cinebody uses reasonable efforts to ensure that the Site is available 24 hours a day, 7 days a week. However, there will be occasions when access to the Site will be interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of Cinebody. Cinebody will use reasonable commercial efforts to minimize such disruption where it is within the reasonable control of Cinebody. You agree that Cinebody shall not be liable to you for any modification, suspension or discontinuance of the Site (except that refunds may be issued in the event of Platform discontinuation). YOU UNDERSTAND AND AGREE THAT THE SITE IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY OF ANY KIND. You are responsible for obtaining access to the Site and acknowledge that such access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements (if any). In addition, you must provide and are responsible for all equipment necessary to access the Site.
7. Trademarks. All brand, product and service names used on the Site which identify Cinebody are proprietary marks of Cinebody. All brand, product and service names used on the Site which identify third parties and their products and services are proprietary marks of such third parties. Nothing on the Site shall be deemed to confer on any person any license or right on the part of Cinebody or any third party with respect to any such image, logo or name.
8. External Links. From time-to-time Cinebody may provide links that will take you to third party websites. These links are provided for your convenience only. If you decide to access linked websites you do so at your own risk. Cinebody does not endorse or take responsibility for the content on other website or the availability of other website and you agree that Cinebody is not liable for any loss or damage that you may suffer by using other websites.
9. Rules of Conduct.
9.1 The following Rules of Conduct apply to the Site. By using the Site, you agree that you will not upload, distribute, or promote any submission (including Content) that: (a) contains any threatening, harassing, obscene, pornographic or profane material or any other material that could give rise to any civil or criminal liability under applicable law; (b) contains any material that could infringe rights of privacy, publicity or copyrights without the permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) whose likenesses are displayed in the material; (c) contains any material sent from an anonymous or false address; or (d) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Site or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the Site.
9.2 You expressly agree that you are solely responsible for any and all acts and omissions that occur under your user account and you agree not to engage in any unacceptable uses of the Site, which include, without limitation, use of the Site to: (a) register for the Site if you have not acknowledged reading and agreed to abide by these Terms and the Privacy Policy; (b) create user accounts by automated means or under fraudulent or false pretenses; (c) create or transmit unsolicited electronic communications (including spam); (d) submit false or misleading information; or (e) engage in any other activity deemed by Cinebody to be in conflict with the spirit of these Terms or the Privacy Policy.
9.3 We cannot and do not assure that other users are or will be complying with the foregoing rules of conduct or any other provisions of these Terms, and, as between you and us, you hereby assume all risk of harm or injury resulting from any such lack of compliance. Under no circumstances shall Cinebody be liable for the acts or omissions of any user.
10. Proprietary and Privacy Protection for Content on the Site. The information, Content, image files, software and materials on the Site may be protected by U.S. and international copyright and other intellectual property laws and by other applicable laws, including privacy laws. You understand that Cinebody is unable to provide you with permission to copy, display or distribute material for which you do not own the copyright or other intellectual property rights, except as may be expressly set forth on the Site. You may not copy or distribute such material without the written consent of the owner, and you are solely responsible for any copyright or other intellectual property law violations that you may incur as a result of your activities on the Site. Cinebody has the absolute right to terminate your account or exclude you from the Site if you use our Site to violate the intellectual property rights or other rights of third parties.
11. Claims of Copyright Infringement.. It is Cinebody's policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 ("DMCA"). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Cinebody 's copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing: (a) An electronic or physical signature of a person authorized to act on behalf of the copyright owner; (b) Identification of the copyrighted work that you claim has been infringed; (c) Identification of the material that is claimed to be infringing and where it is located on the Service; (d) Information reasonably sufficient to permit Cinebody to contact you, such as your address, telephone number, and, e-mail address; (e) 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 law; and (f) A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner. The above information must be submitted to the following DMCA Agent:
Attn: Copyright Agent
3839 N Jackson Street
Denver, CO 80205
Cinebody may at its sole discretion limit access to the Platform and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
12. Limitation of Liability.
12.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL Cinebody (INCLUDING ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS) BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF Cinebody HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, THAT RESULT FROM THE USE OR THE INABILITY TO USE THE SITE, FROM ANY CHANGES TO THE SITE, OR THE SERVICES OR FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT.
12.2 THE TOTAL, CUMULATIVE LIABILITY OF Cinebody (INCLUDING ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS) TO YOU FOR ANY CLAIM, ACTION OR DEMAND ARISING FROM OR RELATING TO THESE TERMS OR USE OF THE SITE OR CONTENT SHALL NOT EXCEED THE GREATER OF (a) $100 or (b) THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IT IS THE INTENTION OF YOU AND Cinebody THAT THIS PROVISION BE CONSTRUED BY A COURT/TRIBUNAL AS BEING THE BROADEST LIMITATION OF LIABILITY allowed under APPLICABLE LAW.
13. Indemnification. You agree to defend, indemnify and hold harmless Cinebody, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your Content, your use of any Content, your violation of these Terms or your use of our Site, and including without limitation any use of our Site, content, services and products other than as expressly authorized in these terms or your use of any information obtained from our Site.
14. MANDATORY DISPUTE RESOLUTION/CLASS-ARBITRATION WAIVER .
14.1 BY ENTERING THIS AGREEMENT, YOU AND CINEBODY AGREE TO ARBITRATE ANY AND ALL CLAIMS, CONTROVERSIES OR DISPUTES OF ANY KIND AGAINST EACH OTHER. YOU AND CINEBODY WAIVE THE RIGHT TO A TRIAL BY JURY AND ALSO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. ACCORDINGLY, YOU AND CINEBODY AGREE THAT NEITHER CINEBODY NOR YOU WILL JOIN ANY CLAIM WITH THE CLAIM(S) OF ANY OTHER PERSON OR ENTITY WHETHER IN A LAWSUIT, ARBITRATION, OR ANY OTHER PROCEEDING. YOU AND CINEBODY AGREE THAT NO CLAIMS WILL BE ASSERTED IN ANY REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE, THAT NO CLAIMS WILL BE RESOLVED ON A CLASS-WIDE OR COLLECTIVE BASIS, THAT NO ARBITRATOR OR ARBITRATION FORUM WILL HAVE JURISDICTION TO ADJUDICATE ANY CLAIMS ON A CLASS-WIDE OR COLLECTIVE BASIS, AND THAT NO RULES FOR CLASS-WIDE OR COLLECTIVE ARBITRATION WILL APPLY. THUS YOU AND CINEBODY MAY ONLY BRING CLAIMS AGAINST ONE ANOTHER IN AN INDIVIDUAL CAPACITY, NOT AS A NAMED PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE CAPACITY. This agreement to arbitrate is intended to be broadly interpreted and applies to all claims regardless of whether they are based on conduct that occurred prior to, during or after the term of the Agreement and regardless of whether the claims are based in contract, tort, statute, fraud, misrepresentation or any other legal theory. References to the terms "Cinebody" "You," "Your," "Party," or "Parties" include all respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors and assigns. This arbitration provision survives termination of this Agreement. The sole exception to this arbitration agreement is that either You or CINEBODY may, in the alternative, bring claims in a small claims court having competent jurisdiction.
14.2 Arbitration Procedure. A party who intends to seek arbitration must first send to the other party, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Cinebody should be addressed to: Cinebody Management Team. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If Cinebody and You do not reach an agreement to resolve the claim within 30 days after the Notice is received, You or Cinebody may commence an arbitration proceeding pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement. A single neutral arbitrator will be selected by agreement of the parties. If an agreement cannot be reached, a single neutral arbitrator will be selected according to the AAA's procedures and the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), and the claims will be resolved pursuant to this Mandatory Dispute Resolution/Class-Arbitration Waiver provision and the AAA Rules in effect when the claim is filed. The AAA Rules are available online at www.adr.org/sites/default/files/Consumer_Rules_Web_2.pdf and can also be obtained by calling the AAA at 1-800-778-7879. AAA will administer the arbitration, and You may file a demand for arbitration at www.adr.org. Unless Cinebody and You agree otherwise, any in-person arbitration hearings will occur within 100 miles of Your address, with the preference that it occur in the county/parish of Your address. If a claim is for $10,000 or less, the party submitting the claim may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator ("desk arbitration"), through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. The arbitrator conducting a desk arbitration or telephonic hearing may be located anywhere in the United States. If a claim exceeds $10,000, the AAA Rules govern where a hearing occurs. The arbitration will be confidential, but either party may notify any governmental authority of the claim.
14.3 Arbitrator's Authority. The arbitrator is bound by the terms of this Agreement, and the arbitrator's authority is limited to claims between You and Cinebody. The arbitrator has no authority to join or consolidate claims unless the parties agree otherwise in writing. The arbitrator, not any court or agency, has exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator may award all relief or remedies available in court, including declaratory and injunctive relief, but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that individual's claim.
14.4 Costs of Arbitration. Except as otherwise provided for herein, Cinebody will: (a) pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with this arbitration provision; and (b) will not seek an award of its attorney's fees. If the arbitrator finds that the substance of the claim or the relief sought is frivolous, however, then the AAA Rules will govern the payment of all fees, and Cinebody may seek an award of its reasonable attorney's fees. Furthermore, if You initiate an arbitration seeking more than $75,000 in damages, the AAA Rules govern the payment of all fees. You are responsible for all additional costs that You incur in the arbitration, including but not limited to, fees for attorneys or expert witnesses. Notwithstanding anything to the contrary in this provision, Cinebody will pay all fees and costs that it is required to pay under the law.
14.5 Notwithstanding any provision in this Agreement to the contrary, You agree that if Cinebody makes any future change to this Dispute Resolution Provision (other than a change to the Notice address listed above) during the term of this Agreement, You may reject any such change by sending Cinebody written notice within 30 days of the change to the Notice address provided above. By rejecting any future change, You are agreeing that You will arbitrate any dispute between us in accordance with the language of this provision. Changes made to this provision after either party has submitted a Notice will not affect the pending dispute.
14.6 Governing Law and Venue. The interpretation of the rights and obligations of the parties under this Terms of Service, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado without regard to the conflict of laws provisions thereof. Subject to this section, each party will bring any action or proceeding arising from or relating to this Terms of Service exclusively in a federal or state court in Denver, Colorado, U.S.A., and each party irrevocably submit to the personal jurisdiction and venue of any such courts in any such action or proceeding brought in such courts.
15. General.
15.1 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Cinebody as a result of these Terms or use of the Site.
15.2 Enforcement. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
15.3 Force Majeure. Each party will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, pandemics, labor shortages, earthquakes, Internet or telecommunication disruptions, failure of licensors or suppliers, material shortages or any other cause which is beyond its reasonable control.
15.4 Waiver. The failure of either party to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
15.5 Entire Agreement and Severability. These Terms, together with any applicable Cinebody order forms, terms of sale, license agreements or other Cinebody agreements that you enter into in connection with Cinebody products and services, constitute the entire agreement between you and Cinebody and govern your use of the Site, superseding any prior agreements between you and Cinebody. The failure of Cinebody to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, that provision shall be deemed severable and shall not affect the validity and enforceability of any other provision of these Terms which shall remain in full force and effect. In the case of inconsistencies between these Terms and any other information presented to you regarding the Site (e.g., promotional materials and mailers), these Terms will always govern and take precedence. Cinebody rejects the inclusion of any terms contained in any purchase order or other such ordering document provided by you, and such terms shall be deemed null and void.
15.6 Amendment of Terms. We reserve the right to make changes to our Site, policies and these Terms from time-to-time without notice. Your continued use of the Site constitutes acceptance of and the intent to be bound by any amendments, additions or modifications to these Terms. We will, however, use good-faith efforts to notify paying customers of any material changes forthcoming to the Platform.
15.7 Contact. Any questions, comments or suggestions, including any report of violation of these Terms should be sent to support@cinebody.com.