VIDEOFORT, LLC. TERMS OF SERVICE FOR VIDEOFORT FOOTAGE & VIDEOFORT SUBSCRIPTION AGREEMENT
Dear VideoFort Footage Purchaser:
It is your responsibility to regularly check the "About" link on the home page of VideoFort.com to view the then-current terms. If you breach any of the Terms of Service for Footage, your failure to comply could result in the immediate termination of your account.
1. All Footage on the VideoFort website is protected by United States and international copyright laws and treaties. VideoFort or the various artists or entities that provide Footage to VideoFort ("Submitters") own all rights, including the copyrights in and to the Footage. VideoFort or its Submitters reserve all rights in and to the Footage not expressly granted to you by the terms of this license. Your rights to use any Footage are subject to this license agreement and are conditioned upon your payment in full to VideoFort for the subscription price.. If you fail to make any payment to VideoFort when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. If your account becomes delinquent, your right to use any Footage downloaded at any time shall automatically terminate unless all payments together with any interest thereon and VideoFort's costs of collection, bank charges and credit card processing fees are received by VideoFort no later than fifteen (15) days from the date that your account became delinquent.
2. You agree to and authorize Preapproved Payment using your credit card or automatic bank account debt. The Preapproved Payment is an automatically recurring payment made on a monthly basis. You warrant and represent that you have the authority to provide such credit card information to VideoFort and shall be responsible for all charges. You give VideoFort permission to securely store your financial information to be used in billing. Within 2 business days of any Preapproved Payment, you will receive a confirmation of the transaction by email. If the Preapproved Payment will vary in amount and is made using a bank debit card you will have the right to advance notice of the amount and date of the transfer at least 10 days before the transfer is made.
3. To cancel the subscription fill out the cancellation form found on the website. Your request must be received at least 3 business days before your statement due date for the month in which your request is made.
4. By this Agreement, VideoFort grants you a personal, non-exclusive, non-transferable, right i) to use, ii) to modify in the chosen medium and iii) to reproduce the Footage by incorporating it into a single derivative work such as a feature film, documentary, videogram, multimedia presentation, advertisement, live performance or internet website and displaying and distributing that derivative work to the public by any means now known or hereafter developed. Personal use means used for you, your direct employer, client, or customer, who must be the end user of your work.
5. VideoFort shall be under no obligation to refund any fees paid by you for Footage under any circumstances. However, in the event that VideoFort determines that you are entitled to a refund of all or part of such fees, any refund shall only be made to the credit card account originally used by you to purchase Footage. If Footage was paid by check, any refund will be made by check.
6. If you are entering into this agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to VideoFort for any breaches of the terms of this agreement.
7. You may not use the Footage other than as specified in PART 1.
8. You may not use the Footage in any way that might be considered defamatory, libelous, obscene, immoral, or illegal. This includes use of the Footage in a way that places any person in the Footage in a negative light or depicts them in a way that they may find offensive - this includes, but is not limited to use of the Footage in: a) in pornography, in or advertising adult entertainment venues or in correction with works that are created to or marketed to appeal to prurient interest; b) tobacco ads; c) ads for escort, dating, human companionship or similar services; d) political endorsements; e) advertisements for pharmaceutical products, and herbal or medical products, including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products;. g) in materials that identify the person within the footage as you or as a false identity which are being used to deceive or mislead another.
The Footage may not under any circumstances be used in a way that would defame, malign, slander or libel the person, property, country, nationality, race, gender, custom, culture, socioeconomic class, or religion depicted in the Footage. The Footage shall not be incorporated into a logo, trademark or service mark. All trademarks and service marks visible in the Footage are and shall remain the exclusive property of the trademark or service mark owner. If there are any incidental trademarks or logos contained in the Footage, you may not alter these items or use them in any way which implies an association with or an endorsement by the owner(s) of such trademarks, notwithstanding the trademarks or logos may be completely blurred or darkened. The inclusion of these incidental trademarks in the Footage does not in any way constitute or imply such association with or endorsement of the Footage. If any Footage featuring a model is used in: a) a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service; or b) connection with a subject that would be unflattering or controversial to a reasonable person, you must accompany each such use with a statement that indicates “Footage of Actor Used for Illustrative Purposes Only- Does Not Imply Endorsement.”
9. The Footage and any derivative work incorporating the Footage, may not, in whole or in part, be used, sold, sublicensed, reproduced, distributed, displayed, incorporated into or otherwise made available as screensavers, templates, standalone backgrounds, stock elements, effects imagery elements, or downloadable files. You may not post any Footage on any electronic bulletin board, put it on-line in a downloadable form or otherwise make it available via FTP, IRC, peer-to-peer file sharing services or the like. The Footage and any derivative work containing the Footage may not, in whole or in part, be included in any other clip media/stock product, library, collection, or set of clips for distribution or resale. These restrictions apply even if the Footage has been significantly altered. The total VideoFort Footage used in a project that is to be reproduced, sold or distributed (e.g., DVDs, home videos, music videos, training videos, etc.) may not comprise more than fifty percent (50%) of the length of the finished work, even if the Footage is layered with other graphics. Additionally, the total Footage may not be the primary value of the work into which the Footage is incorporated.
10. You agree to take all reasonable steps to prevent any third party from duplicating or distributing any of the Footage included in your finished work. You may not resell, redistribute, repost, or transfer the Footage or any portion of the Footage except as specifically provided herein.
11. You may not share any Footage by providing access to the Footage on shared disk drives, computer networks, ftps, intranets of any nature or other similar types of technology now known or later developed.
12. You may not use any Footage (in whole or in part) as a common law or registered trademark, logo, symbol, service mark, soundmark, or other indication of origin or as an element thereof, or to otherwise endorse or imply the endorsement of any goods or services.
13. You may not produce or otherwise create for resale or distribution, printed reproductions of any portion of the Footage on canvas, paper or any other medium.
14. You may not use automated programs, applets, bots and similar devices to download Footage.
15. Upon notice from VideoFort or if you learn that any Footage is subject to a threatened or actual claim of infringement, violation of another right, or any other claim for which VideoFort may be liable, or if VideoFort removes any Footage for any reason, you will remove the Footage from your computer systems and storage devices (electronic or physical) and, if possible, cease any future use of the removed Footage at your own expense. VideoFort shall provide you with comparable Footage (which comparability will be determined by VideoFort in its reasonable commercial judgment) free of charge, but subject to the other terms and conditions of this agreement.
16. Footage with model releases and property releases will be marked as “reviewed” on the VideoFort.com website. Footage which contains the likenesses or images of individuals and for which no model release is available will not be marked. VideoFort does not otherwise provide any trademark or copyright clearances or model or property releases with respect to the Footage and grants no rights and makes no warranties, regardless of whether footage is marked “reviewed” or is unmarked with regard to the use of names, people, trademarks, trade dress or copyrighted designs or works of art or architecture depicted in any Footage. You shall be solely responsible for determining whether one or more clearances or releases are required in connection with any proposed use of Footage. You acknowledge that some jurisdictions prevent the use of a person's image, likeness, or property for commercial purposes without their written consent. VideoFort makes no representations or warranties regarding whether or not any additional fees or payments may be due to any union, association, or other organization for use of any Footage.
17. You must retain the copyright notice and the Footage identifying number associated with the Footage as may be included as part of Footage. You may make no more than one (1) high-resolution copy of the Footage for back-up purposes only. Upon the expiration or termination of this agreement, whichever occurs earlier, you shall delete the Footage from your computer or other electronic storage systems within 14 days
"Film Footage courtesy of VideoFort, LLC. Used by Permission"
19. "Non-transferable" as used herein means that except as specifically provided in this agreement, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, the Footage or the right to use the Footage. In addition, the work you produce with the Footage must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially responsible steps to prevent third parties from duplicating any Footage.
21. Except as specifically provided herein, neither VideoFort or any of its directors, officers, employees, partners, licensors, or agents shall be liable for any damages, whether lost profit damages, direct damages, indirect damages, consequential damages, incidental damages, punitive damages, attorney fees, arising out of the use of, or the inability to use, any Footage.
22. This contract will be governed by and construed in accordance with the laws of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect these TOS. You hereby consent to the personal jurisdiction of the state and federal courts located within California. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within California and not elsewhere. You agree that service of process in any actions, controversies and disputes arising from or relating to this agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall limit the right to effect service of process in any other manner permitted by law. This agreement shall be construed neither against nor in favor of either of the parties, but rather in accordance with the fair meaning thereof.
If any of the Terms of Service are held by a court to be unenforceable, such provisions shall be limited to the minimum extent necessary and replaced with a valid provision that best embodies the Terms of Service.
23. If you are unsure of your rights under this agreement please contact VideoFort Support at info@VideoFort.com. If you become aware of any unauthorized duplication of any VideoFort Footage please notify us via email at info@VideoFort.com.
24. You may not represent yourself as an agent, employee, designee, or affiliate of VideoFort for any purpose, including but not limited to the negotiation of any business, distribution, partnership, or development agreement.
25. VideoFort warrants and represents that unaltered Footage downloaded and used in full compliance with these TOS and applicable law:
THE SITE, SERVICES, AND MATERIALS INCLUDING THE FOOTAGE AND STILLS, ARE PROVIDED BY VIDEOFORT UNDER THESE TERMS OF SERVICE "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, EXCEPT WHERE PROHIBITED BY LAW, VIDEOFORT WILL NOT BE LIABLE FOR ANY DAMAGES THAT RESULT FROM LAWFUL OR UNLAWFUL USE OF WEBSITE, SERVICES, AND MATERIALS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, DIRECT DAMAGES, INDIRECT DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, CONSEQUENTIAL DAMAGES, AND ATTORNEY FEES.
26. Notwithstanding anything to the contrary contained herein, VideoFort shall not be liable for any damages, costs or losses arising as a result of modifications made to Footage or the context in which the Footage is used by you.
27. VideoFort's total maximum aggregate obligation and liability to you for all claims shall be limited to Ten Thousand United States Dollars - US$10,000.00 - (the "Limits of Liability").
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH VIDEOFORT, VIDEOFORT SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO VIDEOFORT'S OTHER RIGHTS AT LAW AND EQUITY. YOUR RIGHTS UNDER THIS AGREEMENT SHALL IMMEDIATELY TERMINATE UPON YOUR CESSATION OF BUSINESS, INSOLVENCY, ASSIGNMENT OF ASSETS FOR THE BENEFIT OF CREDITORS, BANKRUPTCY OR APPOINTMENT OF A TRUSTEE FOR ALL OR A PORTION OF YOUR ASSETS. UPON TERMINATION OF THIS AGREEMENT FOR ANY REASON, YOU SHALL IMMEDIATELY CEASE ALL USE OF THE FOOTAGE IN ANY FORM AND IMMEDIATELY RETURN OR DESTROY ALL COPIES OF FOOTAGE IN YOUR POSSESSION OR CONTROL OR YOUR AGENT’S POSSESSION OR CONTROL. ANY PROVISIONS IN THIS AGREEMENT THAT BY THEIR SENSE AND CONTEXT ARE INTENDED TO SURVIVE THE TERMINATION OF THIS AGREEMENT SHALL SURVIVE SUCH TERMINATION. ANY CAUSE OF ACTION THAT VIDEOFORT MAY HAVE AGAINST YOU FOR BREACH OF THIS AGREEMENT PRIOR TO THE DATE OF TERMINATION SHALL SURVIVE SUCH TERMINATION.
VIDEOFORT MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER AS TO THE LEGALITY OR VALIDITY OF ANY RELEASE ASSOCIATED WITH ANY FOOTAGE. THE STORAGE MEDIA AND ACCOMPANYING MATERIALS (IF APPLICABLE) ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. YOUR RIGHTS UNDER THIS AGREEMENT MAY VARY FROM STATE TO STATE.
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT, VIDEOFORT GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, LOGOTYPES, MUSIC, LIKENESSES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED OR OTHERWISE INCORPORATED IN ANY FOOTAGE INCLUDING FOOTAGE MARKED AS “REVIEWED.” IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS AS MAY BE REQUIRED FOR YOUR USE OF ANY FOOTAGE ARE OBTAINED.
VIDEOFORT DOES NOT WARRANT THAT THE VIDEOFORT WEBSITES WILL MEET YOUR REQUIREMENTS OR THAT USE WILL BE UNINTERRUPTED OR ERROR FREE.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING ANY FOOTAGE FOR ANY COMMERCIAL PURPOSES.
EXCEPT AS SPECIFICALLY SET FORTH HEREIN, VIDEOFORT SHALL NOT BE LIABLE TO YOU OR TO ANY OTHER ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE FOOTAGE, OR OTHERWISE, EVEN IF VIDEOFORT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL VIDEOFORT'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE VIDEOFORT WEBSITE AND/OR FOOTAGE CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.
28. Except as stated herein, in a dispute between VideoFort and you, the prevailing party in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys’ fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding are pursued to decision or judgment. Prevailing party means, a party who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or abandoned by the other Part of its claim of defense. The attorneys’ fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred. In addition, VideoFort shall be entitled to attorneys’ fees, costs, and expenses, incurred in the preparation and servicing of notices of breach and cease and desist.
30. The terms “and” and “or” have both conjunctive and disjunctive meanings to make the meaning more inclusive than exclusive, unless otherwise provided.