ClipShack.com Terms of Use
Effective as of: June 8, 2006
Welcome to ClipShack.com! Reality Digital, Inc. (“Reality Digital,” “we,” or “us”) provides online services related to sharing and managing video content as part of an online community, and also provides online tools and related services (collectively, the “Services”) to assist our customers (“you” or “user”) to share, organize, manage and/or edit such video content online through our website accessible at www.clipshack.com (the “Site”). Please read the following important terms and conditions (“Terms of Use”) carefully. These Terms of Use and our Privacy Policy (http://www.clipshack.com/privacy.html), incorporated herein by reference, govern your access to and use of the Site, including any content, information, products or Services therein. This is a legal agreement between you and Reality Digital.
IF YOU DO NOT AGREE TO ANY OF THESE TERMS OF USE, WE ARE UNWILLING TO GRANT YOU ACCESS TO SITE CONTENT, SERVICES, THE SITE, OR ANY RELATED SERVCES AND TOOLS. YOU SHOULD, THEREFORE, DISCONTINUE USE OF THE SITE IMMEDIATELY.
1. Modification of the Site or Terms of Use
Reality Digital reserves the right, in its sole discretion, at any time and for any reason or no reason, to (i) modify, discontinue or terminate the Site and Services, or (ii) modify these Terms of Use or any related terms and conditions governing your use of the Site, Services, Site Content (as defined in Section 2) and Downloadable Tools (as defined below in Section 7.4) at any time without notice. All modified terms and conditions will be effective after they are initially posted on the Site (unless a longer notice period is required by applicable law). If any modified terms and conditions are not acceptable to you, your only recourse is to cease using the Site and Services, and if applicable, cancel your Membership (as defined below). By continuing to access or use the Site, Site Content, Services, or Downloadable Tools after Reality Digital makes any such revision, you agree to be bound by the revised Terms of Use.
For convenience, we will refer to the various types of content listed below.
§ “Content” means, collectively, all User Content and Video Clips.
§ ClipShack Content means all content, excluding User Content and Video Clips, relating to or available from or through the Site (and any derivative works or enhancements thereof), including but not limited to all software, technology, information, content, materials, guidelines and documentation.
§ Site Content means, collectively, all ClipShack Content, User Content and Video Clips.
§ User Content means any content, excluding Video Clips that is not created by Reality Digital but that you or another user upload, provide or post to the Site and is made available to you or others users from or through the Site, including without limitation (i) text, graphics, music, photos, animation, artwork, data, information, hypertext links, scripts or other material, and (ii) websites and contents proximately reachable from such content. User Content includes any comments or rating features that you may have the opportunity to post regarding Video Clips (“Third Party Comments”).
§ Video Clips means any content, excluding User Content, that is not created by Reality Digital but that you (after becoming a ClipShack Member) or another ClipShack Member upload to the Site and is made available to you or others users from or through the Site, including without limitation video, graphics, music, photos, animation, artwork, data, information, hypertext links, scripts or other material.
3. Membership; Account Access
3.1 In order to post Content to the Site and to allow others to view your Content, you must register as a “ClipShack Member” (the “Membership”). Membership is available to persons who are at least 18 years of age or are otherwise capable of forming legally binding contracts under applicable law. During registration, you will create a user name and password (your “Account”), which may permit you access to certain secure areas of the Site only available to ClipShack Members.
3.2 You are responsible for safeguarding and maintaining the confidentiality of your Account. You agree not to disclose your password to any third party. You agree that you are entirely and solely responsible for any and all activities or actions that occur under your Account, whether or not you have authorized such activities or actions. You agree to immediately notify Reality Digital of any unauthorized use of your Account or any other breach of security known to you. In the event that your password and/or user name is lost or stolen, please notify Reality Digital immediately so that a new password or user name can be created. You have the right to cancel your Account by visiting this page: http://www.clipshack.com/contact.aspx. Your Account information will be maintained and accessed in accordance with the terms of our Privacy Policy.
4. Your Obligations in Using or Accessing the Site and Services
You may use certain areas of the Site and Services without becoming a ClipShack Member, such as accessing and viewing Site Content on the Site. In using or accessing the Site, whether as a ClipShack Member or as a non-member, you agree to comply with the following:
(a) You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using and accessing the Site and all Content contained therein. You understand that you may be exposed to Content that you personally find objectionable, indecent, or offensive and view all Content on the Site at your own risk.
(b) You represent and warrant to Reality Digital that (i) you are the sole and exclusive owner of the Content, or that you have all right and authority to grant the rights in the Content to Reality Digital as described herein; (ii) you have obtained any and all releases necessary from any and all persons depicted in the Content, including, without limitation, releases in the context of rights of privacy and rights of publicity; and (iii) in the event that a person depicted in a Content is under eighteen (18) years of age, you are the parent or legal guardian of such person, or if you are not the parent or legal guardian, you have obtained all appropriate permissions and releases from the parent or legal guardian of the person in question, to submit the Content to the Site.
(c) If you are not a ClipShack Member, you may view Site Content, provided that: (i) you may only view the Site Content for personal, informational, non-commercial purposes; and (ii) you may not modify or alter the Site or Site Content in any way. Except where your use constitutes “fair use” under copyright law, you may not otherwise use, download, upload, copy, print, display, license, perform, reproduce, post, publish, distribute, transmit, submit or otherwise make available any information or Site Content from the Site in whole or in part without the express written authorization of Reality Digital or the applicable copyright owner or agent.
(d) If you become a ClipShack Member, you may upload, email, post, publish, transmit or otherwise submit User Content to the Site as available – for example, in a discussion group, chat area, bulletin board, feedback area, news group, letter to Reality Digital, its webmaster or employees, or email function – if offered as part of the Site and Services.
(e) If you become a ClipShack Member, you may upload, post, publish, distribute, transmit, submit, perform, display or otherwise make available Video Clips to the Site directly or via the ClipShack video-upload software application, (the “Downloadable Tools”). Your right to use the Downloadable Tools is subject to the terms of the license as set forth in Section 7.4 of these Terms of Use.
(f) You may be interested in inviting your friends to become ClipShack Members. You can do so by visiting our “Invite” webpage where you have the option of adding one or more e-mail addresses into an online form. A message will be sent from ClipShack on your behalf inviting your friend to become a Clipshack Member. Reality Digital will only use this email address for the purpose of sending this “Invite a Friend” email and for no other purpose unless the invitee becomes a member of ClipShack. These email addresses will be stored in the ClipShack address book that you create.
(g) You will not use the Site and Services for any purpose or in any manner, nor upload, email, post, publish, distribute, transmit, submit, perform, display or otherwise make available through the Site and Services any Content, that: (i) is of an adult, sexual or controversial nature (as further described in Section 5 (“Adult Content”) below); (ii) violates or infringes another’s rights, including but not limited to privacy, publicity or intellectual property rights (as further described in Section 6 (“Copyright Infringement”) below); (iii) is unlawful, in violation of or contrary to the laws or regulations in any state or country where your Content is created, displayed or accessed; (iv) is in breach of these Terms of Use; (v) is fraudulent, false or misleading; (vi) is hateful, tortuous, defamatory, slanderous or libelous; (vii) harasses another individual, promotes bigotry, racism, hatred or harm against any group or individual, promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or otherwise interferes with another party’s use or enjoyment of the Site; (viii) is profane, vulgar, or obscene; (ix) is violent or threatening, or promotes violence or actions that are threatening in any way to anyone; (x) promotes illegal or harmful activities or substances (including but not limited to activities that promote or provide instructional information about activities such as making or buying illegal weapons or illegal substances); (xi) is invasive of another’s privacy or includes personal or identifying information about another person without that person’s explicit consent; (xii) is harmful to minors in any way; or (xiii) constitutes unsolicited bulk email, “junk mail,” “spam” or chain letters.
(h) You may not repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure.
(i) You agree that you are solely responsible for your Content. Reality Digital has no responsibility to control or monitor any Content, and, as a result, does not manage, control or guarantee, nor is responsible for, the truth, accuracy, completeness, integrity, safety, timeliness, quality, appropriateness, legality or applicability of such content. Although Reality Digital does not accept responsibility for Content, Reality Digital does reserve the right to remove at any time, without notice, Content that Reality Digital in its sole discretion considers to be in violation of these Terms of Use. Reality Digital also reserves the right, in its sole and absolute discretion, to reject or remove: (i) any Content it deems unsuitable for the Site; and (ii) any single-frame Video Clips or Video Clips that are less than one (1) second in duration.
(j) You agree to cooperate fully with Reality Digital to investigate any suspected or actual activity that is in breach of these Terms of Use.
(k) If you become a ClipShack Member, you will provide true, accurate and complete registration information and shall maintain as current and promptly update relevant personal contact information provided to Reality Digital. You will not use false identities or impersonate any other person or use a name that you are not authorized to use.
(l) You will not attempt to gain unauthorized access to any Account other than your own.
(m) You will not attempt to obtain any information or materials relating to the Site and Services through any means not intentionally made available through the Site and Services, or attempt to gain unauthorized access to Reality Digital’s database, technology, computer systems or networks associated with the Site and Services. You will not attempt to modify, translate, adapt, edit, decompile, disassemble or reverse engineer any technology applications or software programs used by Reality Digital in connection with the Site and Services, including without limitation the Downloadable Tools, or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of or impairs the functionality of the Site and Services. You will not upload or cause the Site to have access to anything that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment. You may not use any automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Site and Services – unless expressly permitted by Reality Digital.
(n) You will not encourage or instruct any other individual to do any of the foregoing or to violate any of these Terms of Use or Reality Digital policies.
(o) You acknowledge, agree and accept that: (i) the Site and Services may be provided to you by Reality Digital or its affiliates, distribution partners or third-party service providers; (ii) your Content may be included on the websites of Reality Digital’s affiliates, distribution partners or third-party service providers, in addition to, or instead of, those websites and those of Reality Digital; and (iii) there is no guarantee that your Content will be included on the Site or other website of Reality Digital or a Reality Digital affiliate, distribution partner or third-party service provider and Reality Digital and its affiliates, distribution partners or third-party service providers bear no liability relating to such exclusion.
(p) You understand and agree that, as stated above, neither Reality Digital nor any Reality Digital affiliate or authorized party intends, or will be required, to edit or review for accuracy, ownership or appropriateness any of your Content. However, you agree that all Content, including any search terms and descriptions, may be subject to Reality Digital’s approval. Reality Digital reserves the right, at any time, to reject, suspend, cancel or remove Content, to assign new search terms to any Content, or to refuse to provide access to your Content. Reality Digital, its employees, consultants and other agents shall have no liability for taking such actions or decisions.
(q) Reality Digital does not refer, endorse, recommend, verify, evaluate or guarantee any information provided by users or ClipShack Members, any specific ClipShack Member or any Content, and nothing shall be considered as a referral, endorsement, recommendation or guarantee of any information, ClipShack Member or Content. You shall not create or distribute information, including but not limited to advertisements, press releases or other marketing materials, or include links to any sites which offer such information, containing or suggesting an endorsement by Reality Digital of you or your Content. Reality Digital reserves the right to warn, suspend or terminate at any time and without notice your access to or use of the Site and Services if Reality Digital determines, in its sole discretion, that you are transmitting or otherwise connected with such prohibited endorsement.
(r) You are solely responsible for all equipment necessary to access and use the Site and Services, and, if applicable, for reporting and payment of all taxes associated with any fees paid to you by Reality Digital.
You agree not to submit any Content that Reality Digital considers to be of an adult, sexual or controversial nature (collectively, “Adult Content”). Examples of Content that Reality Digital, in its sole discretion, considers to be Adult Content include, but are not limited to, the following material:
§ Any pornographic, sexually explicit or sexually related themes, language, text, music or images (of partial or full nudity), including any sexually graphic “wallpaper”
§ Any content whose purpose is to sexually arouse a user or cause lascivious or lustful thoughts
§ Any reference to or inclusion of any image in any form of sexual intercourse or behavior, actual or simulated
§ Any content which is intended to let users know that you have Adult Content materials, submissions, content or websites
§ Any content which, because of the nature, images, music, tone or description appears to be designed solely to solicit sexual/adult talk or thoughts, such as “I will talk about anything”, “Tell me your wildest dreams”, etc.
§ Any submission whose feedback consistently indicates that the author is engaging in sexually-oriented conduct or Adult Content
§ Any content related to bestiality, rape, sex, incest, sex with graphic violence or degradation, excretory functions, bodily fluids, fisting and any other content, whether expressed or implied, which may be judged as obscene
§ Any content containing or referring to child pornography, including references to “Lolita” or inclusion of images of or references to nude “girls”, “boys”, “teens” or “children”
If Reality Digital finds Content that it determines, in its sole discretion, contains Adult Content, Reality Digital may, without notice, remove or block access to such Content. Reality Digital reserves the right to suspend or cancel at any time and without notice a ClipShack Member’s Account that Reality Digital, in its sole discretion, determines to be in violation of this Section. Reality Digital will take all appropriate steps with Content that Reality Digital believes violates applicable laws, including cooperation with any investigation. Reality Digital will comply with its obligations to report evidence of child pornography offenses to the appropriate law enforcement authorities pursuant to the Protection of Children from Sexual Predators Act and other applicable laws. Any such material will be forwarded to the appropriate law enforcement authorities upon discovery and public access will be disabled. If you see Content that you believe is Adult Content or is in violation of law or this Section, please contact Reality Digital immediately.
YOU SHALL NOT USE THE SITE AND SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Reality Digital provides the Site, Services and access to Content as a service to our users. Reality Digital does not monitor, supervise or control Content posted or stored on its servers at the direction of its ClipShack Members, users or partners, nor does it control or supervise the content of pages that are accessed via third party links. You are responsible for complying with all applicable federal and state laws, including, without limitation, the copyright laws.
Reality Digital has adopted and implemented a policy pursuant to which Reality Digital may terminate a ClipShack Member’s Account, or deny access to the Site and Services by a user, who infringes or is believed to be infringing, a copyright or other intellectual property right. Furthermore, Reality Digital reserves the right to terminate a ClipShack Member’s Account, or deny access to the Site and Services by a user, if Reality Digital believes that the user’s conduct is harmful to the interests of Reality Digital or its affiliates, distribution partners or third-party service providers or other users, or for any other reason in Reality Digital’s sole discretion, with or without cause. In addition, Reality Digital reserves the right to remove, or disable access to, infringing material.
In accordance with the Digital Millennium Copyright Act of 1998 (the text of which may be found on the U.S. Copyright Office website at http://lcweb.loc.gov/copyright/ ), Reality Digital will respond expeditiously to claims of copyright infringement that are reported to Reality Digital’s “Designated Copyright Agent” identified below. If you are a copyright owner, or are authorized to act on behalf of an owner of the copyright or of any exclusive right under the copyright, and believe that your work has been copied in a way that constitutes copyright infringement, please report your notice of infringement to Reality Digital by providing Reality Digital’s Copyright Agent listed below with the following information:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the Site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Reality Digital to locate the material;
(iv) Information reasonably sufficient to permit Reality Digital to contact the complaining party, including a name, address, telephone number and, if available, an email address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(vi) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All claims of copyright infringement on or regarding this Site should be delivered to Reality Digital’s “Designated Copyright Agent” at the following address:
Copyright Agent: Cynthia Francis
Reality Digital, Inc.
600 Townsend St., Suite 170e
San Francisco, CA 94103
Fax: (415) 503- 3959
Email: copyright@realitydigital.com
7. Intellectual Property Rights and Ownership
7.1 ClipShack Content. Excluding your Content, Reality Digital owns all right, title and interest, including without limitation all intellectual property rights, and all derivative works or enhancements thereof, relating to the Site and the ClipShack Content, including but not limited to all information, content, materials, products, services, URLs, the Downloadable Tools, other software, technology, editorial or user guidelines, and documentation, developed in whole or in part by, with or for Reality Digital. You shall not acquire any right, title or interest therein, except for the limited use rights expressly set forth in these Terms of Use. Any rights not expressly granted herein are withheld.
7.2 Your Content. As between Reality Digital and you, you retain all rights in User Content and Video Clips that you upload or post to the Site and archive through the Services. Reality Digital shall not acquire any right, title or interest in or to such Content, except as expressly provided herein. Any rights not expressly granted herein are reserved.
7.3 Your License to Reality Digital. Notwithstanding the foregoing, and in connection with your use of the Site and Services, you hereby grant (or warrant that the owner of such rights has expressly granted) to Reality Digital a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable right and license to use, copy, adapt, publish, transmit, distribute, perform, display, reference, index and cache, in any form, medium or technology now known or later developed on the Site or the sites of Reality Digital’s affiliates, distribution partners or third-party service provides, your Content and any materials you submit to ClipShack, in whole or in part, whether created by or for you, to provide the Site, Services, and Content to you and to perform our obligations under these Terms of Use. Excluding your Content, you shall and hereby do assign to Reality Digital all right, title and interest in and to any part of the Site and Services that you may have or acquire. In addition, you warrant that all so-called moral rights in the Content have been waived.
7.4 Reality Digital’s License to You --- Downloadable Tools License. Subject to these Terms of Use, we also grant you a limited, non-exclusive, nontransferable license to access and make personal use of and to download, install and operate any software, scripts and other content (e.g., graphics) that we may from time to time have specifically identified within the Site as available for download (the “Downloadable Tools”). You may not use any Downloadable Tools except as authorized by these Terms of Use. You agree not to reproduce, duplicate, copy, sell, resell or exploit any part of the Service or Downloadable Tools, or use the Service for any commercial purposes. You further agree not to combine or integrate the Service and/or any Downloadable Tools with hardware, software or technology not provided by us, or modify, further develop or create any derivative product based on the foregoing. You may not decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site, Services and/or Downloadable Tools is compiled or interpreted, and nothing in these Terms of Use may be construed to grant any right to obtain or use such source code.
7.5 No Commercial Use. The Site and Services are intended for personal non-commercial use only. If you are interested in using the Site for commercial purposes, please contact Reality Digital sales at this link: http://www.clipshack.com/contact.aspx.
8. Use of Third Party Software and/or Services
Reality Digital may from time to time make available to you (either for download or online access) software from one or more third-parties (“Third-Party Software”), including, by way of example, software that may assist you when you transmit video files to the Site or to edit such files while they are on your personal computer. Unless we otherwise inform you on the Site, your use of such Third-Party Software is not ordinarily required in order to access and/or use the Site and Services. However, if you elect to use such Third-Party Software, your use thereof will be subject to all terms and conditions contained within the applicable license agreement between you and the third party provider of such software, and you understand that these Terms of Use do not themselves grant you any rights to use such Third-Party Software.
Additionally, from time to time Reality Digital may refer you to one or more of our business partners who make available products or services through their respective Web sites or by other means (e.g., by mail or otherwise)(“Third-Party Offerings”). For example, you may desire to obtain assistance from a professional when you edit digital files of family photos or movies, so we may recommend one of our business partners to provide that assistance for you. You understand that we do not provide, are not responsible for, and disclaim all liability relating to any such Third-Party Offerings, and that all Third-Party Offerings are subject to the applicable terms and conditions by which each third-party vendor provides those Third-Party Offerings.
9. Representations and Warranties.
You represent and warrant that: (a) you have full power and authority to enter into these Terms of Use; (b) the execution and delivery of these Terms of Use, and the performance of your obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which you are a party or violate any rights of any third parties arising therefrom; (c) you have and will maintain throughout your use of or access to the Site and Services all rights, authorizations, consents and licenses that are required with respect to, and in order to submit, your Content to the Site and permit Reality Digital to post, perform and display such Content, perform its services and provide access to and use of the Site and Services as contemplated under these Terms of Use, which rights, authorizations, consents and licenses have been obtained and will be maintained in compliance with all applicable laws, rules and regulations and without violating any rights or interests of any third party; (d) your Content does not violate any law or regulations and you will use the Site and Services and any information provided to you by Reality Digital in a manner that complies with applicable laws; (e) you have full technical and editorial control of your Content; (f) your Content does not and will not, directly or indirectly, infringe any copyright, trademark, United States patent, trade secret right, moral right, rights of publicity or privacy, or any other intellectual property or proprietary right of any third party; (g) you have obtained any and all necessary and appropriate publicity releases from any third party appearing in your Content; (h) your Content does not and will not in any way violate any laws relating to consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity; (i) your Content (or any material used in your Content) will not contain any “back door,” “trap door”, “time bomb,” “Trojan Horse,” “worm,” “drop dead device,” “Easter Eggs”, “cancelbots” or other computer programming routines or viruses that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit access to or use of the Site and Services or other software or hardware by unauthorized parties, or disable, damage or erase any portion of the Site or Content processed or stored therein; (j) you shall use the Site and Services solely for the purposes intended; and (k) if you exercise the license rights granted in Section 7.4 (“Reality Digital’s License to You”) above, your primary intention in doing so is not for commercial advantage or private monetary compensation.
10. Indemnity.
10.1 You agree to indemnify, defend and hold Reality Digital and its officers, directors, employees, successors, agents, affiliates, distribution partners or third-party service providers (collectively, the “Reality Digital Entities”) harmless from and against any claims, liabilities, losses, damages or expenses (including reasonable attorneys’ fees and costs) arising out of or in any way connected with: (a) your Content or any materials in any form whatsoever that are provided by you or through use of your Account; (b) your conduct, including your access to or use of the Site and Services or, as applicable, your use of the Downloadable Tools; (c) any actual or alleged violation or breach of these Terms of Use or any Reality Digital policies; (d) any breach of any representation or warranty you made hereunder, including but not limited to any to claims relating to a violation of a third party’s intellectual property rights or Reality Digital’s determination that your Content was obscene, defamatory, libelous, slanderous or threatening; (e) your violation of rights of privacy, publicity, confidentiality or property; or (f) any actual or alleged violated of any applicable law or regulation. You agree that you are solely responsible for defending any such claim as set forth above, and for payment of losses or damages suffered by or awarded to and costs and expenses incurred by third parties and the Reality Digital Entities resulting from the foregoing. You agree that you will not enter into any proposed settlement or resolution of any claim (whether having been finally adjudicated or otherwise) brought against you or Reality Digital, if such settlement or resolution results in any obligation or liability for Reality Digital.
10.2 You agree that Reality Digital shall have the right, in its sole discretion, to select its own legal counsel to defend Reality Digital from any such claim (but by doing so shall not excuse your indemnity obligations) and that you shall be solely responsible for the payment of all Reality Digital’s reasonable attorneys’ fees incurred in connection therewith.
10.3 You agree to notify Reality Digital immediately if you become aware of any actual or potential claims, suits, actions, allegations or charges pertaining to your Content or that could affect either party’s ability to fully perform its duties or to exercise its rights under these Terms of Use.
11. Disclaimers.
11.1 YOU EXPRESSLY AGREE THAT YOUR USE OF OR INTERACTION WITH THE SITE, SERVICES, SITE CONTENT, DOWNLOADABLE TOOLS, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE, IS AT YOUR OWN RISK AND AT YOUR OWN DISCRETION. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE, THE SITE, SERVICES, SITE CONTENT, DOWNLOADABLE TOOLS, INFORMATION, SOFTWARE, AND OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE, INCLUDING ALL REALITY DIGITAL INDICES, SEARCH ENGINES AND YOUR USE THEREOF, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
11.2 REALITY DIGITAL AND THE REALITY DIGITAL ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE RELATED TO THE SITE, SERVICES, SITE CONTENT, OR DOWNLOADABLE TOOLS, OR THESE TERMS OF USE. REALITY DIGITAL MAKES NO WARRANTY THAT: (A) THE SITE, SERVICES, SITE CONTENT, OR DOWNLOADABLE TOOLS WILL MEET YOUR REQUIREMENTS; (B) THE SITE, SERVICES, SITE CONTENT, OR DOWNLOADABLE TOOLS WILL OPERATE OR WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (C) THE QUALITY OF THE SITE, SERVICES, SITE CONTENT, OR DOWNLOADABLE TOOLS, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE AND SERVICES WILL MEET YOUR EXPECTATIONS.
11.3 REALITY DIGITAL SHALL HAVE NO RESPONSIBILITY FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SITE, SERVICES, SITE CONTENT, DOWNLOADABLE TOOLS, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE AND SERVICES. Some jurisdictions do not allow the exclusion of warranties, so some of the above exclusions may not apply to you.
11.4 You fully understand that Third Party Comments may be disparaging, defamatory, embarrassing, unwelcome or otherwise be of an unfavorable nature. Reality Digital expressly disclaims any liability for any Third Party Comments. You acknowledge and agree that Reality Digital shall have the right: (a) to include any Third Party Comments on the Site and in any and all forms of advertising, promotion and publicity for the Content; and (b) to broadcast and otherwise exploit the Content and advertisements containing Third Party Comments in any manner, by any method, and in any and all media, whether currently existing or hereafter developed, as long as such Content is included on the Site. You hereby assign and agree to assign all rights, title and interest you have in any Third Party Comments you provide, to Reality Digital together with all intellectual property rights therein. You expressly and hereby forever waive and relinquish all so-called “moral rights” associated therewith.
11.5 If you have a dispute with a ClipShack Member or another user of the Site and Services, or suffer any harm arising out of or connected with your access or use to the Site and Services, you hereby waive all claims against and release Reality Digital and the Reality Digital Entities from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Site, Services or any Site Content or with regard to such disputes. If you are a California resident, you waive and relinquish your rights under California Civil Code § 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Residents of other states and nations waive their rights under analogous laws, statutes or regulations.
12. Limitation of Liability.
12.1 UNDER NO CIRCUMSTANCES WILL REALITY DIGITAL OR THE REALITY DIGITAL ENTITIES BE LIABLE TO YOU OR TO ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS AND SERVICES, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, YOUR ACCESS TO OR USE OF THE SITE, SERVICES, SITE CONTENT, DOWNLOADABLE TOOLS, INFORMATION OR OTHER MATERIAL AVAILABLE FROM OR THROUGH THE SITE, INCLUDING AS APPLICABLE ANY DAMAGES RESULTING FROM THE INTERRUPTION, SUSPENSION OR TERMINATION OF THE SITE, SERVICES, OR DOWNLOADABLE TOOLS IN ANY MANNER WHATSOEVER, WHETHER THE DAMAGES ARE FORESEEABLE AND WHETHER OR NOT REALITY DIGITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so some of the above limitation or exclusion may not apply to you.
12.2 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, REALITY DIGITAL’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THESE TERMS OF USE WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). REALITY DIGITAL WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OF OR ERRORS RELATED TO THE SITE, SERVICES OR ANY SITE CONTENT. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so some of the above limitations and exclusions may not apply to you.
13. Term & Termination
13.1 We may terminate or suspend your access to the Services and the Site, in the event that you breach these Terms of Use. Notwithstanding the foregoing, we also reserve the right to terminate the Services, Site or your access at any time and for any reason by providing notice to you in accordance with these Terms of Use. After such a termination, you understand and acknowledge that we will have no further obligation to provide the Services or to archive or make your Content available through the Site. You should therefore make backups of your Content especially if you decide to terminate your Account with us. Upon termination, all licenses and other rights granted to you by these Terms of Use will immediately cease, and you agree to promptly remove the Downloadable Tools and any copies thereof from your computers and storage media, and to destroy any confidential information of ours that you may possess. If we terminate these Terms of Use for reasons other than your breach, upon your timely request we will refund a pro rata share of any fees or other charges prepaid by you (if any), provided that all fees and other charges prepaid by you are otherwise non-refundable. You agree to pay any amounts accrued but remaining unpaid as of termination (if any).
13.2 You may terminate your account with us or cancel your Membership at any time and for any reason by contacting us at this page: http://www.clipshack.com/contact.aspx.
13.3 Any suspension, termination or cancellation shall not affect your obligations to Reality Digital or the Reality Digital Entities under these Terms of Use (including but not limited to ownership, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation.
14. Export Restrictions/Legal Compliance.
You may not access, download, use or export the Site, Services or any Site Content, including the Downloadable Tools or any related technology, in violation of U.S. export laws or regulations, or in violation of any other applicable laws or regulations. You agree to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority, and not to directly or indirectly provide or otherwise make available the services and products of Reality Digital in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, you shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to your own use of the services of Reality Digital outside the U.S. Neither the services of Reality Digital nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, (a) into Cuba, Iran, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Table of Denial Orders. By agreeing to these Terms of Use, you agree to the foregoing and represents and warrants that you are not located in, under the control of, or a national or resident of any such country or on any such list.
15.1 No Assignment. You shall not assign these Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Reality Digital. Any such purported assignment or delegation by you without the appropriate prior written consent of Reality Digital shall be null and void and of no force and effect. Reality Digital may assign these Terms of Use or any rights hereunder without your consent.
15.2 Relationship of the Parties. Reality Digital acts as an interface to facilitate publication of Content. For purposes of these Terms of Use, including if you become a ClipShack Member and create an Account, you are not an employee, agent or contractor of Reality Digital, and you shall not represent that you are any of the foregoing. Each party shall be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and shall not bind or attempt to bind the other to any contract. Each party shall be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Use, including, without limitation, any expenses associated with the implementation of these Terms of Use.
15.3 Severability and Waiver. In the event that any provision in these Terms of Use is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of Reality Digital to enforce any right or provision of these Terms of Use will not be deemed a waiver of such right or provision.
15.4 Force Majeure. Reality Digital shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to Reality Digital’s infrastructure or connectivity to the Internet, or failure at Reality Digital’s co-location facility, (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, Reality Digital will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues.
15.5 Governing Law. The Terms of Use and the relationship between you and Reality Digital shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and Reality Digital agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California.
15.6 Entire Agreement. These Terms of Use are the entire and exclusive agreement between Reality Digital and you regarding the Site, Content, and Services, and supersede and replace any prior agreements between Reality Digital and you regarding the Site, Content, Downloadable Tools and Services.
15.7 Note About Children. To become a ClipShack Member or use the Site and Services you must be at least eighteen (18) years old and otherwise capable of forming legally binding contracts under applicable law. If you are under eighteen (18), please do not use the Site.
15.8 Notice. Any notice or other communication to be given hereunder will be in writing and given (a) by Reality Digital via email (in each case to the address that you provide), (b) a posting on the Site, or (c) by you via email to feedback@realitydigital.com or to such other addresses as Reality Digital may specify in writing. The date of receipt shall be deemed the date on which such notice is transmitted.
15.9 Questions. If you have questions about these Terms of Use or would like to request a copy of these Terms of Use or any other records relating to these Terms of Use of your use of the Site, Services, and Content, please contact Reality Digital at info@realitydigital.com or by sending a written request to Reality Digital, Inc., 600 Townsend St., Suite 170e, San Francisco, California 94103.
15.10 Feedback. Your feedback is welcome and encouraged. You may submit feedback by emailing us at feedback@realitydigital.com. You agree, however, that (i) by submitting unsolicited ideas to Reality Digital or any of its employees or representatives, you automatically forfeit your right to any intellectual property rights in these ideas; and (ii) unsolicited ideas submitted to Reality Digital or any of its employees or representatives automatically become the property of Reality Digital. You hereby assign and agree to assign all rights, title and interest you have in an such feedback and ideas to Reality Digital together with all intellectual property rights therein.
If you intend to own the intellectual property rights of your ideas in any way (patent, trade secrets, copyright, trademark, etc.) please do not submit your concepts or prototype samples to Reality Digital, its employees or assigns. Instead, please send an email to feedback@realitydigital.com and describe ONLY the general application. If we think there is opportunity to pursue your idea further, we will contact you. Please note that a legal agreement may be required by Reality Digital in order to evaluate your concept(s).