LAST UPDATED: July 27, 2014
This End User License Agreement and Terms of Service (the “EULA”) is a binding contract between you, an individual user (“you”) and Cinemacraft, Inc. (“Cinemacraft”, “us” or “we”) governing your use of the Cinemacraft website (the “Website”) and mobile application (the “App”) (the Website and the App are, collectively, the “Service”). BY INSTALLING OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE EULA. IF YOU DO NOT AGREE, THEN YOU MAY NOT USE THE SERVICE.
- Summary of Material Terms. As provided in greater detail in the EULA (and without limiting the express language of the EULA), you acknowledge the following:
- the App is licensed, not sold to you, and that you may use the App only as set forth in the EULA;
- the use of the App may be subject to separate third party terms of service and fees, including, without limitation, your mobile network operator’s (the “Carrier”) terms of service and fees, including fees charged for data usage and overage, which are your sole responsibility;
- the App is provided “as is” without warranties of any kind and Cinemacraft’s liability to you is limited;
- disputes arising hereunder will be resolved by binding arbitration. By accepting the EULA, as provided in greater detail in Section 22 of the EULA, you and Cinemacraft are each waiving the right to a trial by jury or to participate in a class action;
- the App requires access to the following services on your mobile device: location and your device identifier; and if you are using the App on an iOS-based device, then you agree to and acknowledge the “Notice Regarding Apple,” below.
- The Service is a platform enabling Publishers (as defined below) to convert videos into interactive, dynamic pictorial summaries of such videos (“Videograms”).
- Third Party Fees. Your use of the Service may incur third party fees, such as fees charged by your Carrier for data usage, and may be subject to third party terms, such as your Carrier’s terms of service, and you agree to pay all such fees and abide by all such terms. You acknowledge and agree that you are solely responsible for all such fees incurred by you for use of the Service.
- Service Security. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Cinemacraft’s sole discretion. Cinemacraft reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
- Changes to the EULA. The Service is owned and operated by Cinemacraft. Cinemacraft reserves the right to revise the EULA in its sole discretion at any time and without prior notice to you other than by Posting (as defined below) the revised EULA within the App and on the Website. Revisions to the EULA are effective upon Posting unless specified otherwise. The EULA will be identified as of the most recent date of revision. Your continued use of the Service after a revised version of the EULA has been Posted by Cinemacraft constitutes your binding acceptance of such revised EULA. Notwithstanding the preceding sentences of this Section 2.e, no revisions to the EULA will apply to any dispute between you and Cinemacraft that arose prior to the effective date of such revision.
- Eligibility. If you are using or opening an account on the Service on behalf of a company, entity, or organization (each a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to the EULA and (ii) agree to be bound by the EULA on behalf of such Subscribing Entity. This section applies not just to individuals registering on behalf of a Subscribing Entity, but also to Agencies (as defined below) registering on behalf of any Subscribing Entity.
- Children. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 13 OR TO ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY CINEMACRAFT. In order to use the Service, you must either be 18 years of age or possess parental or guardian consent, and you must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the EULA and to abide by and comply with the EULA. If you are under 18 years of age, then by using the Service you certify that your parent or guardian has consented to your use of the Service and to the EULA on your behalf, and you acknowledge and agree that your use of the Service is at their discretion. Until you are 18 years old, your parent or guardian may ask us to modify, deny access to, or terminate your account and we may do so at their request or at any time, for any reason, without notice and liability.
- Evolving Nature of Service. The Service is continually evolving and changes to the Service may be made at any time. If you don’t like the Service or in any way disagree with the EULA, then we hope you will let us know and give us constructive feedback. Please feel free to e-mail us at any time at firstname.lastname@example.org.
- Scope of License to Users.
- License Grant to You. The Service is licensed, not sold, to you for use only under the terms of the EULA. Subject to your complete and ongoing compliance with the terms and conditions of the EULA, Cinemacraft hereby grants you a personal, limited, revocable, non-transferable license to (i) use the App on compatible, authorized devices that you own or control and (ii) access and use the Website, in both instances solely for your own use or for the Subscribing Entity on whose behalf you are authorized to act.
- License Limitations. You may not modify, alter, reproduce, or distribute the App. You may not directly rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (as defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted in the EULA, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
- Applicability to Updates. The terms of the EULA will govern any updates provided to you by Cinemacraft that replace and/or supplement the App, unless such upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern.
- Registration and Eligibility.
- Account Types. In order to create a Videogram, you must create an account on the Service (an “Account”). All registered users (Agencies, Master Clients, and Clients (whether Paid Service, Verified or Non-Commercial), each as described below) are “Publishers.” The following types of Accounts are available to Publishers:
- Clients. A “Client” is a brand, studio, individual or other entity or person who is the owner or authorized licensee of an Asset (as defined below) used to create a Videogram. A Client may be Non-Commercial, Paid Service or a Verified Publisher. A “Non-Commercial” Client is an individual or entity using the Service to create, but not monetize for such Client’s own benefit, Videograms. A “Paid Service” Client is a Client that pays Cinemacraft for the right to use the Service and reserves the right to insert Publisher Ads (as defined below) into such Client’s Videograms. A “Verified Publisher” is a Client, pre-approved by Cinemacraft, that authorizes Cinemacraft to sell advertising against the Client’s Videograms and is entitled to receive a portion of revenue generated by Cinemacraft from advertising in such Client’s Videograms, and has provided payment information sufficient for Cinemacraft to make payments to such Client. Verified Publishers must also obtain Cinemacraft’s prior approval to participate in the Revenue Share Model (as defined below), such approval not to be unreasonably withheld; provided, however, that grounds for withholding approval include, but are not limited to (A) a Client located in a country where due to political sanctions, Cinemacraft will be unable to pay such Client, (B) a Client seeking to incite hatred or violence or otherwise violate the laws of a foreign jurisdiction with such Client’s Assets, or (C) providing approval would breach a contract between Cinemacraft and a third party.
- Agencies. “Agencies” are Subscribing Entities registering on behalf of multiple Clients (such as sports teams, brands, and media companies). As an Agency, you may be able to manage multiple Client Accounts through your Agency Account. Agencies with multiple Client Accounts may provide individual Clients with access to their respective Client Accounts.
- Master Clients. A “Master Client” Account allows a single Publisher to create multiple Client Accounts (e.g., a Publisher that owns multiple brands), but, unlike an Agency Account, each Client Account must be managed through its individual Client Account.
- Log-In Credentials. You may create an Account by connecting to your social network account, or by selecting a username and password. You are solely responsible for maintaining the confidentiality and security of your username and password, and you will remain responsible for all use of your username and password, and all activity emanating from your Account, whether or not such activity was authorized by you. We may also require additional information upon registration, such as your country and payment information, if applicable.
- Theft of Log-In Credentials. If your username or password are lost or stolen, or if you believe that unauthorized third parties have accessed your Account, then you should notify Cinemacraft immediately via e-mail to email@example.com, and should change your password at the earliest possible opportunity. Cinemacraft will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Cinemacraft of such unauthorized use or loss of your credentials. Agencies providing individual Clients with access to Client Accounts should provide each Client with separate log-in credentials and not disclose the Agency’s own credentials to Clients.
- Public Availability of Username and Profile Picture. You understand that your username will be publicly available through the Service and that search engines may index your name. You should think carefully before using the Service and selecting a username if you are concerned about your privacy or anonymity.
- Accuracy of Information; Rejection of Registered Names. We reserve the right to disallow, cancel, remove or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of the EULA, or an infringement or violation of the rights of any third party, or of any applicable laws or regulations, including, but not limited to, trademark rights, copyrights, or the rights of privacy or publicity, or that otherwise damage or harm Cinemacraft. You agree to provide true, accurate, current, and complete information about yourself as requested in any registration forms required by Cinemacraft. You also agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to an e-mail address provided by you are returned as undeliverable, then Cinemacraft reserves the right to terminate your Account immediately with or without notice to you and without any liability to you or any third party.
- Content You Submit; License Grants From You.
- User Content. This Section 5 governs any material that Publishers upload, post, index, or transmit (collectively, “Post”) to or through the Service or to us through e-mail, text message, or via any other means permitted by Cinemacraft, including, by way of example and not limitation, audiovisual works, photographs, artwork, literary works, comments, concepts, ideas, inventions, messages, and any other work subject to protection under the laws of the United States or any other jurisdiction, including, but not limited to, patent, trademark, trade secret, and copyright laws (collectively, “Assets”). You are solely responsible for securing the rights to any and all Assets you Post to or through the Service, including obtaining the permission to use the image and likeness of any identifiable person included in an Asset Posted by you. Subject to the license granted to us below, you retain all rights in and to your Assets.
- License Grants to Cinemacraft.
- By Posting Assets to the Service, you hereby grant to Cinemacraft (and Cinemacraft’s assignees, designees, successors, licensees, and sub-licensees) an unrestricted, assignable, sublicensable, revocable, royalty-free, fully paid up license throughout the world and during the term of the EULA to reproduce, distribute, publicly display, transmit, communicate to the public, publicly perform on a through-to-the-audience basis, create derivative works (e.g., Videograms) from, and otherwise use and exploit (collectively, “Use”) all Assets you upload to or through the Service through any media and formats now known or hereafter developed, for the purposes of: (A) transmitting, publicly displaying, communicating to the public, making available or distributing your Assets (through the use of Videograms) to Third Party Services or other visitors to the Service, pursuant to your Videogram Settings (as defined below); and (B) advertising, marketing, and promoting the availability of your Assets on and through the Service, subject to your Videogram Settings. When you Post an Asset to create a Videogram, you may designate the Videogram as “Public,” “Private,” or “Shared” (each, a “Videogram Setting”). A Public Videogram will be available to the user of any website or application through which a Videogram is distributed with authorization from the Publisher (including Third Party Services and the Service). A Private Videogram will be viewable only by the Publisher who has Posted the underlying Asset. A Shared Videogram will be available only (y) on or through those Third Party Services specifically authorized by the Publisher who Posted the underlying Asset or (z) on the Service to those who are provided a unique URL to the Videogram. If you create a Public or Shared Videogram, then you may embed such Videogram on Third Party Services.
- License for Name, Image, Voice, and Likeness. You further grant Cinemacraft a royalty-free license to Use your name, image, voice, and likeness (and that of any person identifiable in any Asset Posted by you to the Service) made available by or on your behalf through the Service in conjunction with advertising, marketing, or promoting you and/or your Asset, or, with your prior approval, Cinemacraft or the Service. Upon termination, the license in the immediately preceding sentence shall survive the termination of your Account with respect to any of your Assets submitted or uploaded to, and not deleted from, the Service prior to such termination.
- Limited Waiver of Rights. By Posting Assets to or through the Service and subject to your approval for use in marketing or promotional materials related to such Assets, you waive any rights to prior inspection or approval of any Use of your Assets. You further waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your Assets, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that you may have in or with respect to any Assets you Post to the Service, during the term of the EULA. You expressly release Cinemacraft and all of Cinemacraft’s agents, partners, subsidiaries, affiliates, licensees, successors, and assigns from any and all claims, demands, liabilities, or causes of action, whether now known or unknown, for defamation, copyright infringement, violation of moral rights, and invasion of the rights to privacy, publicity, or personality or any similar matter, or based upon or relating to the Use of your Assets as authorized in the EULA.
- Specific Rules for Musical Works. If you are a composer or author of a musical work and have affiliated with a performing rights organization (“PRO”) (such as ASCAP, BMI or SESAC in the United States), then you must notify your PRO of the royalty-free license granted by you to Cinemacraft through the EULA. Each PRO has specific rules that apply to the grant of a nonexclusive license to a third party such as Cinemacraft. You are solely responsible for ensuring your compliance with the relevant PRO’s reporting obligations and will cooperate with Cinemacraft, upon request, in responding to any inquiries or demands by any PRO. If you have assigned your rights to a music publisher, then you must obtain the consent of such music publisher to grant the royalty-free license set forth in the EULA or have such music publisher enter into the EULA with Cinemacraft. Just because you authored a musical work (e.g., wrote a song) doesn’t mean you have the right to grant Cinemacraft the licenses contained in the EULA.
- Through-to-the-Audience Rights. All of the rights granted in the EULA by you are provided on a through-to-the-audience basis, meaning, by way of example and not limitation, the owners or operators of Third Party Services will not have any separate liability to you or any other third party (e.g., a PRO) for Assets publicly performed, publicly displayed, made available or communicated to the public through such Third Party Services via the Service.
- Do Not Post Assets for Which You Lack the Necessary Rights. You must not upload, store, host, distribute, send, transmit, display, perform, make available or otherwise communicate to the public or Post any Assets to which you do not hold the necessary rights. In particular, any unauthorized use of copyrighted material within your Assets (including by way of reproduction, distribution, modification, adaptation, public display, public performance, preparation of derivative works, making available or otherwise communicating to the public via the Service) without full ownership and/or control, or written and valid permission to do so, may constitute an infringement of third party rights and is strictly prohibited. Any such infringements may result in termination of your access to the Service as described in Section 16, damages against you for breach of the EULA, and civil litigation or criminal prosecution against you.
- Representations and Warranties With Respect to Assets You Post. Except for materials provided to you by Cinemacraft through the Service, you represent, warrant, and covenant that (i) you either are the sole and exclusive owner of all of your Assets that you Post to the Service, or you have all rights, licenses, consents, and releases that are necessary to grant to Cinemacraft the rights in your Assets as contemplated under the EULA, and (ii) neither the Assets you submit to the Service nor your creation of, accessing, Posting, or submission of your Assets or Cinemacraft’s Use of your Assets (or any portion thereof) as permitted in the EULA will (A) infringe, misappropriate or violate the rights of any party or entity, including a third party’s patent, copyright, trademark, trade secret, moral rights, rights of publicity, rights of privacy or other intellectual property or proprietary rights, (B) constitute or result in defamation, libel, slander, or the violation of any applicable law or regulation (including, without limitation, restrictions on obscenity, child pornography, wiretap laws or other similar restrictions on nonconsensual recording, or otherwise), or (C) require Cinemacraft to obtain any licenses from or make any payments in any amounts to any third party throughout the world.
- Prohibition on Uploading Objectionable Content. You agree not to Post Assets or Publisher Ads (as defined below) that: (i) are or could be interpreted to be infringing, defamatory, libelous, inaccurate, unlawful, harmful, threatening, abusive, harassing, vulgar, offensive, obscene, pornographic, objectionable, hateful, or promotes discrimination, bigotry, racism, or hatred (collectively, “Objectionable Content”), as determined by Cinemacraft in its sole discretion; or (ii) introduce viruses, time-bombs, worms, cancel bots, Trojan Horses, and/or other harmful or malicious code.
- Flagging Objectionable Content. The Service will enable users to flag Assets for violating the EULA or for otherwise finding such Assets objectionable. If any of your Assets are flagged by other users of the Service, whether your Assets qualify as Objectionable Content or otherwise, then Cinemacraft may, with or without reviewing your Assets, remove or permit to be removed your Assets without notice or liability to you. If you object to the removal of your Assets, then you may e-mail us at firstname.lastname@example.org.
- Cinemacraft Credits. Certain features of the Service, including, but not limited to, creation of a Videogram and monetization under the Paid Service Model (as defined below), are only available for purchase in Cinemacraft’s virtual currency, “Cinemacraft Credits.” You may be required to pay a fee using real-world money to obtain a license to use Cinemacraft Credits. Regardless of what we call them, Cinemacraft Credits are not real money, do not have monetary value, and may never be redeemed for “real world” money, or other items of monetary value from outside of the Service without our written permission. While we may use terms like “buy”, “purchase” or “sell” in reference to Cinemacraft Credits, we do so only for convenience and such terms in no way indicate that Cinemacraft Credits have monetary value or are real money. You acknowledge that Cinemacraft Credits are not real currency and are not redeemable for any sum of money from us at any time. We make no guarantee as to the nature, quality or value of the features of the Service or any third-party goods or services that will be accessible through the use of Cinemacraft Credits, or the availability or supply of Cinemacraft Credits.
- License. Cinemacraft Credits obtained via the Service are provided to you under a limited, personal, revocable, non-transferable, non-sublicenseable license to use within the Service. Cinemacraft Credits may not be transferred or resold in any manner, including, without limitation, by means of any direct sale or auction service. You have no property interest, right or title in or to any such Cinemacraft Credits appearing or originating in the Service, or any other attributes associated with use of the Service.
- Account Inactivity. All Cinemacraft Credits will be forfeited if your account or access to the Service is terminated or suspended due to Inactivity (as defined in Section 16.b), or if we discontinue availability of some or all of the Service.
- Limitation of Liability. We have no liability for hacking or loss of your Cinemacraft Credits or any goods or services obtained with Cinemacraft Credits. We have no obligation to, and will not, reimburse you for any Cinemacraft Credits or any goods or services obtained via Cinemacraft Credits that are lost due to your violation of the EULA. We reserve the right, without prior notification, to limit the quantity of Cinemacraft Credits and/or to refuse to provide you with any Cinemacraft Credits. Price, exchangeability, and availability of Cinemacraft Credits are determined by us in our sole discretion and are subject to change without notice. Subject to applicable law, you agree that we have the absolute right to manage, distribute, regulate, control, modify, cancel, restrict, terminate and/or eliminate Cinemacraft Credits as we see fit in our sole discretion, and that we will have no liability for exercising such right. You agree that under no circumstances are we liable to you for any damages or claims that may arise from the loss or use of your Cinemacraft Credits regardless of the circumstances. You absolve us of any responsibility to maintain or update your Balance (as defined below). However, if there is a loss of Cinemacraft Credits in your Account due to technical or operational problems with the Service, we will replenish the lost Cinemacraft Credits once the loss has been verified. Without limiting any of the foregoing, our maximum liability or responsibility to you is to replenish the Cinemacraft Credits lost.
- Redemption. You may redeem Cinemacraft Credits as set forth in Section 8 below. We will, in our sole discretion, determine and communicate the availability and exchange rate for any Cinemacraft Credits, which may be modified at any time. All redemptions are subject to the EULA and all limitations and requirements stated via the Service. All acquisitions of Cinemacraft Credits and redemptions pursuant to Section 8 are final. Once Cinemacraft Credits have been spent, they will be subtracted from your Balance and cannot be refunded or returned, except in our sole discretion. Cinemacraft may also issue bonus Cinemacraft Credits at no charge to Prepayment (as defined below) Clients, at its discretion.
- Allocation between Assets. Cinemacraft Credits may be allocated to multiple Assets, but cannot be transferred between Publishers. Notwithstanding the preceding sentence, if you are an Agency, then you may move Cinemacraft Credits between Clients associated with your Agency Account.
- Creating a Videogram. Once you have registered as a Publisher, you may create Videograms by Posting Assets owned or controlled by you. Cinemacraft may provide you with the ability to restrict the availability of your Videograms to specific Zones (as defined below) using the dashboard made available in your Account (the “Dashboard”). Cinemacraft charges an initial fee to create a Videogram (the “Initial Fee”). The Initial Fee will be set forth on the Service and is payable only in Cinemacraft Credits. If you are a Verified Publisher, then the Initial Fee will be recoupable against the Revenue Share (as defined below).
- Monetization Models. Cinemacraft offers two monetization models: Paid Service and Revenue Share (each as defined below).
- “Balance” means the number of Cinemacraft Credits you have in your Account at any given time.
- “Cinemacraft Native Ad” means an advertisement in a Cinemacraft Native Ad Unit.
- “Cinemacraft Native Ad Unit” means a replacement of a frame in a Videogram, a pre-roll video shown within the Videogram, a banner under a video player on Cinemacraft or an in-Videogram tracking advertisement.
- “Usage Billing” means the Paid Service Model payment option whereby Paid Service Clients pay Cinemacraft the Usage Fee on a monthly basis, as invoiced.
- “Prepayment” means the Paid Service Model payment option whereby the Usage Fee is deducted from the Balance by Cinemacraft on an on-going basis.
- “Publisher Ads” means advertisements inserted into Videograms by Paid Service Clients (or Agencies operating on behalf of Paid Service Clients) under the Paid Service Model.
- “Revenue” means Cinemacraft’s revenue from the sale of a Cinemacraft Native Ad Unit in your Videogram in the preceding calendar month, less the deduction set forth on the Service for credit card processing and related fees, which will not exceed 15%.
- “Revenue Share” means an amount equal to 50% of Revenue.
- “Revenue Share Model” means the monetization model available only to Verified Publishers.
- “Usage Fee” means the fee Cinemacraft charges for each thousand Views of a Videogram per Zone, as set forth on Cinemacraft’s rate card. If you are a Usage Billing Client, Cinemacraft will round the total number of Views up to the next thousandth interval (for each Zone) each month in order to calculate the Usage Fee.
- “Paid Service Model” means the monetization model available only to Paid Service Clients.
- “Views” means the total number of views a Videogram receives, calculated on a per-Zone basis on the Service or through Third Party Services.
- “Zone” means a single territory or a group of territories available to Clients in the Dashboard, to which Clients may select to display their Videograms.
- Paid Service Model. In consideration for payment of the Usage Fee, Paid Service Clients (or Agencies operating on behalf of a Paid Service Client) may insert Publisher Ads into Videograms at such Paid Service Client’s discretion. The Paid Service Client will be solely responsible for establishing the rate card for Publisher Ads, and for all related payment, collection, and liability issues. Publisher may choose to offer Publisher Ads on a cost-per-impression (CPM), cost-per-click (CPC) or affiliate purchase basis. Paid Service Clients retain all revenues from the sale of Publisher Ads in such Paid Service Client’s Videograms. Paid Service Clients hereby grant Cinemacraft a royalty-free license to Use Publisher Ads solely as necessary to display such Publisher Ads in such Paid Service Client’s Videogram, and Client is solely responsible for clearing all rights in and to any such Publisher Ads, including, but not limited to, the clearance of performance rights to any musical works on a through-to-the-audience basis. Cinemacraft shall have no obligation to clear rights to or pay any royalties for the Use of any Publisher Ads. Cinemacraft may offer one or both of the following Usage Fee Model payment options in the Dashboard, at its discretion: Prepayment or Usage Billing.
- Prepayment. Under Prepayment, a Paid Service Client must purchase Cinemacraft Credits prior to activating such Paid Service Client’s Videogram. Cinemacraft will deduct the Usage Fee from the Balance for each thousand Views your Videogram collects. When your Balance is zero, we will notify you via e-mail, and you may select from the following options on the Dashboard:
- Purchase more Cinemacraft Credits;
- Terminate the Videogram;
- Replace Publisher Ads with Cinemacraft Native Ads. If the Client is a Verified Publisher, then the applicable Videogram will convert to the Revenue Share Model, and such Client will participate in revenues; if the Client is not a Verified Publisher, then the applicable Videogram may be monetized by Cinemacraft without any liability or revenue share due to you; or
- Subject to Cinemacraft’s prior approval, allow the Balance to become negative.
- For the avoidance of doubt, if you do not select one of the foregoing options, Cinemacraft will default to 8.b.i.C.
- Usage Billing. If you select Usage Billing, then Cinemacraft will invoice you for the Usage Fee each calendar month within 5 days of the end of the calendar month, with payment due by the end of the calendar month following the month the Cinemacraft invoice (the “Invoice”) is received, to be paid in Cinemacraft Credits. Each invoice will set forth the Usage Fee in Cinemacraft Credits and United States Dollars. To the extent Publisher has a Balance, the invoiced amount will be deduced from the Balance until the Balance is zero, at which point the Invoice will be issued. Late payments will accrue interest at a rate of 1.5% per month. Cinemacraft may offer discounts to Usage Billing Clients, with such discounts to be reflected on the Invoice.
- Advertising Guidelines. If you are a Paid Service Client and choose to insert advertising into your Videogram, you may not include advertising relating to:
- Anything that is obscene or indecent or that contains strong sexual, explicit or erotic themes;
- Products or sites depicting or providing how-to materials about pedophilia or their non‑consensual contact;
- Products or sites that suggest the availability of prostitution services;
- Products or sites that advocate, glorify or promote rape, torture, cannibalism, suffering, or death;
- Individuals seeking to adopt children or who offer children for adoption;
- Products that descramble cable or satellite signals in order to get free services;
- Products that promote software or techniques that bypass copyright protections;
- Promotes nudity, nude beaches, or naked cruises or resorts;
- Products or sites that appear to facilitate or promote the evasion of laws (e.g., radar detectors, etc.);
- Products made from endangered species;
- Products or sites that offer fake identification or falsified documentation;
- Promotes the sale of firearms or ammunition by mail order or at gun shows;
- Products or sites that have online gambling as a central theme;
- Promotes services, contests, or games that predict winners of races or sporting events;
- Trivializes historic events such as the Holocaust, the Irish Famine, or September 11th;
- Hunting trips that guarantee animals will be available for kill;
- Multilevel marketing schemes;
- Organ transplant services;
- Products or sites that guarantee credit repair or credit cards;
- Products or sites of questionable legality (e.g., miracle cures, etc.);
- Escort services or “strip” clubs;
- Hate speech;
- Excessive violence;
- Defamatory, libelous, or threatening sites;
- Extreme profanity;
- Depicts, promotes or is designed to facilitate alcohol abuse, illegal drug use, or use of tobacco products; or
- Anything that is significantly damaging to Cinemacraft’s business, in Cinemacraft’s discretion.
- Revenue Share Model. The Revenue Share Model is only available to Verified Publishers. If you choose the Revenue Share Model for a Videogram, then such Videogram must have at least one Cinemacraft Native Ad. Cinemacraft will determine the content, format and quantity of the Cinemacraft Native Ad Units. Cinemacraft will also control the content and format of the Cinemacraft Native Ad. Publishers may add additional Cinemacraft Native Ad Units, subject to a maximum set by Cinemacraft (the “Cinemacraft Native Ad Unit Cap”), as set forth on the Service; provided, however, that Cinemacraft retains all control over the content of all Cinemacraft Native Ads. Cinemacraft Native Ad units will adhere to the advertising restrictions set forth in Section 8.b.iii.
- Revenue Share. For each Cinemacraft Native Ad Unit in your Videogram, Cinemacraft will pay you a monthly Revenue Share.
- Payment. Cinemacraft will pay the Revenue Share within 30 days of the end of each calendar month in which the Revenue was received, once a Verified Publisher’s Revenue Share balance exceeds USD $5,000. Cinemacraft will pay Publisher in the currency selected on the Dashboard, or United States Dollars if no currency options are available. All payments will be made to the PayPal account submitted to Cinemacraft in connection with registering as a Verified Publisher. Verified Publisher will be solely responsible for providing and updating Verified Publisher’s account information on record with Cinemacraft. A Verified Publisher shall be responsible for providing Cinemacraft with all tax and other documentation requested by Cinemacraft, and the delivery of such documentation shall be a condition precedent to any payment obligation by Cinemacraft.
- In-House Ads. Verified Publishers may include an unlimited amount of advertisements promoting such Verified Publishers’ own products or services under the Revenue Share Model, subject to the Cinemacraft Native Ad Unit Cap. All other Verified Publisher-sourced advertisements are prohibited.
- Non-Commercial. If you are a Non-Commercial Client, then Cinemacraft reserves the right to include advertising in your Videogram, with no payment due to you. Cinemacraft reserves the right to determine how such advertising will be monetized. Non-Commercial Clients may not include any advertising in Videograms.
- Reports. Cinemacraft will make available to a Publisher a monthly report on the Dashboard detailing the following information for each calendar month that the Publisher has a Videogram served by Cinemacraft: (i) how many times each of Publisher’s Videograms were served and (ii) how many times such Videograms led to playback of the underlying Asset, with each metric segregated by countries and Zones. For an additional fee, payable in Cinemacraft Credits, Cinemacraft will provide additional data, such as aggregated and anonymized user behavior with respect to separate Videogram frames, segmented by age, gender and location.
- Control by Cinemacraft. You acknowledge and agree that Cinemacraft reserves the right to change our policies with respect to monetization at any time; provided, however, that any change in policies will not deprive you of any rights to payments or obligations to pay fees that accrued prior to such changes.
- No Royalties. Except as specifically provided in this Section 8, you, as a Publisher expressly waive any claim for royalties or any other remuneration in connection with the Use of Assets on or through the Service. Without limiting the foregoing sentence, you acknowledge and agree that Cinemacraft shall not have any obligation to pay any royalties to any third party for the Use of your Assets, including, but not limited to, payments to a PRO anywhere in the world for the Use of your Assets on or through the Service.
- Third Party Materials; Cinemacraft Content.
- You understand that by using the Service, you may encounter data, information, applications, materials, and other content from third parties, including other users (collectively, “Third Party Materials”), and data, information, applications, materials, and other content from Cinemacraft (collectively, “Cinemacraft Content” and, together with Third Party Materials, but excluding your Assets, “Service Content”), that may be offensive, indecent, or objectionable, and which may or may not be identified as having explicit language or other material. Nevertheless, you agree to use the Service at your sole risk and that Cinemacraft shall not have any liability to you for any Service Content that may be found to be offensive, indecent, or that is inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality or otherwise objectionable. You use the Service, and rely upon any Service Content accessible through the Service, at your sole risk.
- You agree and understand that the Service contains proprietary content, information, and material that is protected by applicable intellectual property and other laws, including, but not limited to, copyright, and that you will not use such proprietary content, information or materials except for permitted use of the Service. No portion of the Service may be reproduced or resold, leased, or rented by you in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner, and you shall not exploit the Service in any unauthorized way whatsoever (e.g., hack the Service), including but not limited to, by trespass or burdening network capacity. You further agree not to use the Service in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Cinemacraft is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, illegal or other harmful messages or transmissions that you may receive as a result of using the Service.
- In addition, third party services and Service Content that may be accessed from, displayed on or linked to from your device are not available in all languages or in all countries. Cinemacraft makes no representation that the Service, any third party services, and Service Content are appropriate or available for use in any particular location. To the extent you choose to access such services or materials, you do so at your own initiative and are responsible for compliance with any and all applicable laws. Cinemacraft and its licensors reserve the right to change, suspend, remove, or disable access to the Service at any time without notice. In no event will Cinemacraft be liable for the removal or disabling of access to all or any portion of the Service at any time. Cinemacraft may also impose limits on the use of or access to all or any portion of the Service at any time, in any case and without notice or liability. You are solely responsible for maintaining back-up copies of any Assets you upload to the Service. Although we may attempt to notify users prior to the disabling of access to all or any portion of the Service, we are not obligated to provide such notice and you should not rely upon the continued availability of the Service for any Assets.
- Third Party Websites, Applications and Services.
- The Application may provide you with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, “Third Party Services”).
- No Control Over Third Party Services.
- Cinemacraft does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third Party Services,
- Cinemacraft does not give any representation, warranty or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such Third Party Services.
- Disclaimer of Liability for Third Party Services. You are solely responsible for taking the precautions necessary to protect yourself from fraud when using Third Party Services, and to protect your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content and material that may be included on or may emanate from any Third Party Services. Cinemacraft disclaims any and all responsibility or liability for any harm resulting from your use of Third Party Services, and you hereby irrevocably waive any claim against Cinemacraft with respect to the content or operation of any Third Party Services.
- Your Use of the Service and Service Content. Your right to use the Service is a privilege, not a right, and is expressly conditioned on the following:
- You may access the Service solely as intended through the provided functionality of the Service and as permitted under the EULA.
- Unless permitted by the functionality of the Service, you agree not to copy, reproduce, distribute, publish, display, perform, communicate to the public, make available, transmit, stream or broadcast any part of the Service (including Videograms) without Cinemacraft’s prior written authorization, including, by way of example and not limitation, by doing or engaging in any of the following without Cinemacraft’s express written consent:
- altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
- using any trademarks, service marks, design marks, logos, photographs or other content belonging to Cinemacraft or obtained from the Service.
- You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the App designed to control the manner in which the Service is used, harvest or mine Service Content from the Service, or otherwise access or use the Service in a manner inconsistent with individual human usage.
- You agree not to undertake, cause, permit or authorize the translation, reverse engineering, disassembling or hacking of any aspect of the Service, including any Service Content available on or through the Service, or attempt to do any of the foregoing, except and solely to the extent permitted by the EULA, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Cinemacraft.
- You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Service, including any Service Content available on or through the Service, or any portion thereof, through any other application or website, unless and solely to the extent Cinemacraft makes available the means for embedding any part of the Service or Service Content.
- You agree not to access, tamper with, or use non-public areas of the Service, Cinemacraft’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Cinemacraft’s providers.
- You agree not to harass, abuse, harm or advocate or incite harassment, abuse or harm of another person or group, including Cinemacraft employees and other users.
- You agree not to provide any false personal information to Cinemacraft or any other user, or create a false identify or impersonate another person or entity in any way.
- You agree not to create a new account with Cinemacraft, without Cinemacraft’s express written consent, if Cinemacraft has previously disabled an account of yours.
- You agree not to solicit, or attempt to solicit, personal information from other users.
- You agree not to restrict, discourage or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of such person, or collect information about users.
- You agree not to use the Service, without Cinemacraft’s express written consent, to communicate or facilitate any commercial advertisement or solicitation, except as expressly permitted in the EULA.
- You agree not to gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service.
- You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to disable, overburden, impair, damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service.
- You agree not to interfere with or disrupt the Service, or networks or servers connected to the Service, or violate the regulations, policies or procedures of such networks or servers.
- You agree not to violate any applicable federal, state or local laws or regulations or the EULA.
- You agree not to assist or permit any persons in engaging in any of the activities described above.
- A breach of these restrictions may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
- Third Party Software. The software you download consists of a package of components, including certain third party software (“Third Party Software” and together with the App, the “Package”) provided under separate license terms (the “Third Party Terms”), as described in more detail in Section 25. Your use of the Third Party Software in conjunction with the App in a manner consistent with the terms of the EULA is permitted, however, you may have broader rights under the applicable Third Party Terms and nothing in the EULA is intended to impose further restrictions on your use of the Third Party Software.
- Ownership. The Service, and the media and materials contained therein, including all intellectual property rights therein, is the sole and exclusive property of Cinemacraft and its licensors. Except for the limited licenses expressly granted to you under the EULA, no other rights, licenses, or immunities are granted or shall be deemed to be granted to you under the EULA, either expressly, or by implication, estoppel or otherwise.
- Feedback. While our own staff is continually working to develop and evaluate our own product ideas and features, we pride ourselves on paying close attention to the interests, feedback, comments, and suggestions we receive from the user community. If you choose to contribute by sending Cinemacraft or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual, games, or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, the following terms shall apply, so that future misunderstandings can be avoided. Accordingly, by sending Feedback to Cinemacraft, you agree that:
- Cinemacraft has no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
- Feedback is provided on a non-confidential basis, and Cinemacraft is not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way; and
- You irrevocably grant Cinemacraft and its successors and assigns perpetual and unlimited permission to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified.
- You may terminate this EULA immediately upon written notice to Cinemacraft confirming such termination, by removing all of your Assets from your Account, or by deleting your Assets and Account and thereafter by ceasing to use the Service. Simply deleting the App from your mobile device will not effectively terminate your account. Upon any termination of the EULA, you must immediately cease all use of the Service, and destroy all copies, full or partial, of the App.
- Cinemacraft may suspend your access to the Service and/or terminate the EULA at any time if:
- you are deemed to be a repeat copyright infringer as described in Section 21.b;
- (ii) you are in breach of any of a material provision of the EULA;
- (iii) Cinemacraft elects at its discretion to cease providing access to the Service in the jurisdiction where you reside or from where you are attempting to access the Service; (iv) you have not logged into your Account for 18 months (“Inactivity”); or (v) in other circumstances as determined by Cinemacraft at its discretion.
- Upon termination, any and all Assets residing in your Account, or pertaining to activity from your Account (for example, data relating to the distribution of your Videograms), may be irretrievably deleted by Cinemacraft, except to the extent that we are obliged or permitted to retain such Assets, data or information for a certain period of time in accordance with applicable laws and regulations and/or to protect our legitimate business interests. Notwithstanding the foregoing, upon termination, you will have the option to delete all Videograms created using Assets you Posted. You are advised to save or back up any material that you have uploaded to your Account before terminating your Account and deleting your Videograms, as Cinemacraft assumes no liability for any material that is irretrievably deleted following any termination of your Account. If you do not delete your Videograms, your Videograms will remain on the Service, subject to such Videogram’s Videogram Setting. We will disable any Videograms upon the request of the Publisher who Posted the underlying Asset for such Videogram.
- Indemnity. You agree to indemnify and hold Cinemacraft, and its officers, directors, employees, agents, successors, and assigns harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected to (a) your access, use, or misuse of the Service or Service Content, or (b) your violation of the EULA. Cinemacraft will use reasonable efforts to notify you of any such claim, action or proceeding for which it seeks an indemnification from you upon becoming aware of it, but if Cinemacraft is unable to communicate with you in a timely manner because of an inactive e-mail address for you, then your indemnification obligation will continue notwithstanding Cinemacraft’s inability to contact you in a timely manner. You agree that Cinemacraft shall, at your expense, have sole control over any defense against any claim for which you are obligated to indemnify Cinemacraft pursuant to this Section 17; provided, however, that you shall at all times have the option to participate in any matter or litigation, including, but not limited to, participation through counsel of your own selection, if desired, at your own expense.
- No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, THE PACKAGE, AND ALL SERVICE CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND CINEMACRAFT HEREBY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICE, THE PACKAGE, AND ANY SERVICE CONTENT OFFERED BY CINEMACRAFT, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CINEMACRAFT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN OR SERVICES PERFORMED OR PROVIDED BY THE SERVICE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR NOT INTERFERE WITH YOUR USE OR ENJOYMENT OF ANY OTHER PRODUCTS, GOODS OR SERVICES, INCLUDING APPLICATIONS ON ANY MOBILE DEVICE ON WHICH YOU HAVE INSTALLED THE APP, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CINEMACRAFT OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY NOT EXPRESSLY PROVIDED FOR IN THE EULA. SHOULD ALL OR ANY PORTION OF THE SERVICE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL CINEMACRAFT OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF CINEMACRAFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL CINEMACRAFT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE LESSER OF THE AMOUNT PAID BY YOU TO CINEMACRAFT DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM BY YOU AGAINST CINEMACRAFT, IF ANY, OR $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATION OF CERTAIN TYPES OF DAMAGES OR LIABILITIES, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU, BUT IN SUCH A CASE THE FOREGOING SHALL BE APPLIED TO THE GREATEST EXTENT ENFORCEABLE UNDER APPLICABLE LAW.
- Third Party Disputes. CINEMACRAFT IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE CINEMACRAFT (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
- Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
- Respect of Third Party Rights. Cinemacraft respects the intellectual property of others and takes the protection of intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
- Repeat Infringer Policy. Cinemacraft’s intellectual property policy is to (i) remove or disable access to material that Cinemacraft believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (ii) remove any Assets uploaded to the Service by “repeat infringers.” Cinemacraft considers a “repeat infringer” to be any user that has Posted Assets or Feedback to or through the Service and for whom Cinemacraft has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such Assets or Feedback. Cinemacraft has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Cinemacraft’s own determination.
- Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Cinemacraft with the User alleged to have infringed a right you own or control and the general public, and you hereby consent to Cinemacraft making such disclosure. Your communication must include substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
- Identification of works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- Identification of the specific 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 Cinemacraft to locate the material;
- Information reasonably sufficient to permit Cinemacraft to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
- Designated Agent Contact Information.
- Counter Notification. If you receive a notification from Cinemacraft that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Cinemacraft with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Cinemacraft’s Designated Agent through one of the methods identified in Section 21.d and include substantially the following information:
- A physical or electronic signature of the subscriber;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Cinemacraft may be found, and that the subscriber will accept service of process from the person who provided notification under Section 21.c above or an agent of such person.
- A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
- Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Cinemacraft in response to a Notification of Claimed Infringement, then Cinemacraft will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Cinemacraft will replace the removed Assets or Feedback or cease disabling access to it in 10 business days, and Cinemacraft will replace the removed Assets or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Cinemacraft’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Cinemacraft’s system or network.
- False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
- Any person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Cinemacraft] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
- Cinemacraft reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
- For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act or the procedures set forth in this Section 21 should be sent to the Designated Agent at email@example.com or to the postal address of facsimile number identified above.
- Dispute Resolution.
- Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND CINEMACRAFT AND EACH OF OUR RESPECTIVE CORPORATE PARENTS, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award.
- Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Cinemacraft, to you via any other method available to Cinemacraft, including via e-mail. The Notice to Cinemacraft should be addressed to Cinemacraft, Inc., 2-3-B9-1204 Midori-Chou Musashino-Shi, Tokyo, Japan 180-0012, Attn: Chief Operating Officer (the “Arbitration Notice Address”). The Notice must (A) describe the nature and basis of the claim or dispute; and (B) set forth the specific relief sought (the “Demand”). If you and Cinemacraft do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, then you or Cinemacraft may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org. If you are required to pay a filing fee to commence an arbitration against Cinemacraft, then Cinemacraft will promptly reimburse you for your confirmed payment of the filing fee upon Cinemacraft’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000 or was filed in bad faith, in which case you are solely responsible for the payment of the filing fee.
- Arbitration Proceeding. The arbitration will be conducted in the English language. A single independent and impartial arbitrator with his or her primary place of business in Santa Clara County, California, shall be appointed pursuant to the Rules, as modified herein. You and Cinemacraft agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (A) the arbitration will be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (B) the arbitration will not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (C) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- No Class Actions. YOU AND CINEMACRAFT AGREE THAT YOU AND CINEMACRAFT MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
- Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and will include a statement setting forth the reasons for the disposition of any claim. The arbitrator will apply the laws of the State of California in conducting the arbitration.
- Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Cinemacraft seeks equitable relief of any kind.
- Claims. You and Cinemacraft agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to the EULA or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
- Improperly Filed Claims. All claims you bring against Cinemacraft must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section will be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Cinemacraft may recover attorneys’ fees and costs up to $5,000, provided that Cinemacraft has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
- Modifications. In the event that Cinemacraft makes any future change to the Mandatory Arbitration provision (other than a change to Cinemacraft’s Arbitration Notice Address), you may reject any such change by sending us written notice within thirty (30) days of the change to Cinemacraft’s Arbitration Notice Address, in which case your account with Cinemacraft and your license to use the Service shall terminate immediately, and this Dispute Resolution provision, as in effect immediately prior to the amendments you reject, shall survive the termination of the EULA.
- Enforceability. If only Section 22.a.iii or the entirety of this Section 22 is found to be unenforceable, then the entirety of this Section 22 shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in Section 23 shall govern any action arising out of or related to the EULA.
- Governing Law; Choice of Forum. The laws of the State of California, excluding its conflicts of law rules, govern the EULA and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws; provided, however, that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to any provision of this EULA. To the extent that any action relating to any dispute hereunder is permitted to be brought in a court of law, such action shall be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California and you hereby irrevocably submit to personal jurisdiction in such courts, and waive any defense of inconvenient forum.
- Amendment. Except as expressly provided in the EULA, the EULA may be amended only by a written agreement signed by the party against whom such change is to be enforced.
- Waiver. A provision of the EULA may be waived only by a written instrument executed by the party entitled to the benefit of such provision. No failure or delay on the part of Cinemacraft in the exercise of any power or right under the EULA shall operate as a waiver thereof. No single or partial exercise of any right or power under the EULA shall operate as a waiver of such right or of any other right or power. The waiver by Cinemacraft of a breach of any provision of the EULA shall not operate or be construed as a waiver of any other or subsequent breach of the EULA.
- Severability. Except as expressly provided for in Section 22.f, if any provision of the EULA shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from the remainder of the EULA and shall not affect the validity and enforceability of any remaining provisions.
- Assignment. You may not assign the EULA or any of the rights or licenses granted hereunder, directly or indirectly, including by sale, merger, change of control, operation of law or otherwise, without the prior written consent of Cinemacraft. This means that in the event you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App from your mobile device prior to such disposition. Cinemacraft may assign the EULA, including all its rights hereunder, without restriction.
- No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Cinemacraft as a result of the EULA or use of the Service. You further acknowledge that by submitting Assets, no confidential, fiduciary, contractually implied or other relationship is created between you and Cinemacraft other than pursuant to the EULA.
- Survival. The provisions of the EULA that are intended to survive the termination of the EULA by their nature will survive the termination of the EULA, including, but not limited to, Sections:
5 (Content You Submit; License Grants from You)
9 (Third Party Materials; Cinemacraft Content)
10 (Third Party Websites, Applications and Services)
11 (Your Use of the Service and Service Content)
12 (Third Party Software)
13 (Consent to Use of Data)
18 (No Warranty)
19 (Limitation of Liability)
20 (Third Party Disputes)
21 (Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements)
22 (Dispute Resolution)
23 (Governing Law; Choice of Forum)
- Headings. The heading references in the EULA are for convenience purposes only, do not constitute a part of the EULA, and shall not be deemed to limit or affect any of the provisions thereof.
- Contacting Cinemacraft. You can contact Cinemacraft, Inc. by e-mail at firstname.lastname@example.org, or by Post at Cinemacraft, Inc 4F, 4-8-6 Roppongi, Minato-ku, Tokyo 106-0032 Japan.
Via E-mail: email@example.com
Via U.S. Mail: Pacific Capital Plaza 4F
4-8-6 Roppongi, Minato-ku
Tokyo 106-0032, Japan
Any other comments, compliments, complaints or suggestions about Cinemacraft, the Service or any other matter should be sent to firstname.lastname@example.org.
Please visit www.adr.org for more information about arbitration.
You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act will govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in the EULA.
You acknowledge that, in the event of a breach of the EULA by Cinemacraft or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Cinemacraft, and your only remedy will be for monetary damages, subject to the limitations of liability set forth in the EULA.
NOTICE REGARDING APPLE. You acknowledge that the EULA is between you and Cinemacraft only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of the EULA, and upon your acceptance of the EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce the EULA against you as a third party beneficiary of the EULA. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S.Government list of prohibited or restricted parties. If Cinemacraft provides a translation of the English language version of these Terms, then the translation is provided solely for convenience, and the English version shall prevail.
Third Party Software.
In addition to Cinemacraft’s copyrights, this product contains software components subject to the following third party copyrights and license terms:
- Sencha Touch
- ANDROID SDK License available at http://creativecommons.org/licenses/by/2.5/
Adope PhoneGap/Apache Cordova, Facebook SDK for Android; Facebook SDK for iOS, Google Analytics SDK, and OpenYouTubeActivity are licensed under the terms of the Apache license:
TERMS AND CONDITIONS FOR USE, REPRODUCTION, AND DISTRIBUTION
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- "Contribution" shall mean any work of authorship, including the original version of the Work and any modifications or additions to that Work or Derivative Works thereof, that is intentionally submitted to Licensor for inclusion in the Work by the copyright owner or by an individual or Legal Entity authorized to submit on behalf of the copyright owner. For the purposes of this definition, "submitted" means any form of electronic, verbal, or written communication sent to the Licensor or its representatives, including but not limited to communication on electronic mailing lists, source code control systems, and issue tracking systems that are managed by, or on behalf of, the Licensor for the purpose of discussing and improving the Work, but excluding communication that is conspicuously marked or otherwise designated in writing by the copyright owner as "Not a Contribution."
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- Grant of Copyright License
- Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute the Work and such Derivative Works in Source or Object form.
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- Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.
- You may reproduce and distribute copies of the Work or Derivative Works thereof in any medium, with or without modifications, and in Source or Object form, provided that You meet the following conditions:
- You must give any other recipients of the Work or Derivative Works a copy of this License; and
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- You must retain, in the Source form of any Derivative Works that You distribute, all copyright, patent, trademark, and attribution notices from the Source form of the Work, excluding those notices that do not pertain to any part of the Derivative Works; and
- If the Work includes a "NOTICE" text file as part of its distribution, then any Derivative Works that You distribute must include a readable copy of the attribution notices contained within such NOTICE file, excluding those notices that do not pertain to any part of the Derivative Works, in at least one of the following places: within a NOTICE text file distributed as part of the Derivative Works; within the Source form or documentation, if provided along with the Derivative Works; or, within a display generated by the Derivative Works, if and wherever such third-party notices normally appear. The contents of the NOTICE file are for informational purposes only and do not modify the License. You may add Your own attribution notices within Derivative Works that You distribute, alongside or as an addendum to the NOTICE text from the Work, provided that such additional attribution notices cannot be construed as modifying the License.
- You may add Your own copyright statement to Your modifications and may provide additional or different license terms and conditions for use, reproduction, or distribution of Your modifications, or for any such Derivative Works as a whole, provided Your use, reproduction, and distribution of the Work otherwise complies with the conditions stated in this License.
- Submission of Contributions
- Unless You explicitly state otherwise, any Contribution intentionally submitted for inclusion in the Work by You to the Licensor shall be under the terms and conditions of this License, without any additional terms or conditions. Notwithstanding the above, nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions.
- This License does not grant permission to use the trade names, trademarks, service marks, or product names of the Licensor, except as required for reasonable and customary use in describing the origin of the Work and reproducing the content of the NOTICE file.
- Disclaimer of Warranty
- Unless required by applicable law or agreed to in writing, Licensor provides the Work (and each Contributor provides its Contributions) on an "AS IS" BASIS, WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, either express or implied, including, without limitation, any warranties or conditions of TITLE, NON-INFRINGEMENT, MERCHANTABILITY, or FITNESS FOR A PARTICULAR PURPOSE. You are solely responsible for determining the appropriateness of using or redistributing the Work and assume any risks associated with Your exercise of permissions under this License.
- Limitation of Liability
- In no event and under no legal theory, whether in tort (including negligence), contract, or otherwise, unless required by applicable law (such as deliberate and grossly negligent acts) or agreed to in writing, shall any Contributor be liable to You for damages, including any direct, indirect, special, incidental, or consequential damages of any character arising as a result of this License or out of the use or inability to use the Work (including but not limited to damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses), even if such Contributor has been advised of the possibility of such damages.
- Accepting Warranty or Additional Liability
- While redistributing the Work or Derivative Works thereof, You may choose to offer, and charge a fee for, acceptance of support, warranty, indemnity, or other liability obligations and/or rights consistent with this License. However, in accepting such obligations, You may act only on Your own behalf and on Your sole responsibility, not on behalf of any other Contributor, and only if You agree to indemnify, defend, and hold each Contributor harmless for any liability incurred by, or claims asserted against, such Contributor by reason of your accepting any such warranty or additional liability.
LEAP MOTION is licensed under the following terms:
- Copyright (c) 2013, Leap Motion, Inc.
- All rights reserved.
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
MENY is licensed under the following terms of the MIT License:
- Copyright (C) 2014 Hakim El Hattab, http://hakim.se
- Permission is hereby granted, free of charge, to any person obtaining a copy of this software and associated documentation files (the "Software"), to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software, and to permit persons to whom the Software is furnished to do so, subject to the following conditions:
- The above copyright notice and this permission notice shall be included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
Videogram is powered by Cinemacraft. Founded in Tokyo in 2012. Cinemacraft is registered in US (Delaware) with HQ operations in Tokyo and Sales offices in Los Angeles, Seoul, & Mumbai