8th June 2020
Binumi Agency Hong Kong Limited (“Binumi” or “we”) operates binumi.com, which offers video creation and editing services via a proprietary online, digital, multimedia, content and editing platform. ALL USE OF THE SERVICES AVAILABLE ON THE BINUMI SITE IS ON THESE TERMS. For the avoidance of any doubt these Terms apply not only to Subscribers but to all Users of the Services.
Subscribers are strongly advised to familiarise themselves with these Terms before using the Services or authorising any approved User to do so.
Interpretation: Initially capitalised expressions (Definitions) used in these Terms shall, save where the context otherwise requires, and save as contained in the Mobile Application End-user Licence and the Storyblocks End-User License each referred to below, have the meanings ascribed to them set out in Annex 5 at the end of these Terms.
These Terms include:
- Subscription Charges
- Refund Policy
- Use by Subscribers and All Authorized Users
- Prohibited Uses
- Proprietary Rights in Content
- Content Posted
- Content/Activity Prohibited
- Protecting Copyrights and Other Intellectual Property
- Third Party Linked Services
- User Disputes
- Limitation of Liability
- Modification of Terms
Annex 1. Additional Terms applicable only to Educational Subscriptions
Annex 2. Additional Terms applicable only to Business Subscriptions
Annex 3. Mobile Application End-user Licence
Annex 4. Storyblocks End-user License Agreement
Annex 5. Definitions
The Services provide Users with a non-exclusive licence to use Binumi’s Multimedia Library and other content to create, edit and publish their own videos. Users are able to upload their own content for inclusion in their videos and to share these socially. Business Subscribers and their authorized Users may use videos created using the Services freely within their business while their subscription remains active. Finished videos may not, however, be sold except as expressly provided in these Terms and on payment of additional fees. The Services include online tutorials and help sections which give Users the opportunity to learn video making techniques and navigate throughout the platform.
An online support and help service provides a 24-48 hour, ideal response time.
B. Supplementary Services.
The Services include the following Supplementary Services
(ii) Storyblocks End-user License: The right for Users to use Storyblocks Stock Files is strictly on the terms of the Storyblocks End-user Licence Agreement set out in Annex 4 at the end of these Terms. The terms Storyblocks and Stock Files are more particularly defined in the Storyblocks End-user Licence.
(iii) YouTube. The Services allow Users the ability to post finished videos on YouTube. The right to do so is, however, strictly on the YouTube Terms of Service which can be accessed at YouTube Terms of Service (ToS).
(iv) Google. Where a User has elected to access the Services via Single Sign In or via their Google Drive, the User may revoke Binumi’s API access to the User’s data via the Google security settings page at https://myaccount.google.com/permissions at any time.
C. Subscriptions: Binumi has three (3) different categories of Subscription:
(i) Personal Subscription: This category of Subscription is intended for the individual User and for groups of private Users (including family groups) who only wish to use the Services for private purposes.
(ii) Educational Subscription: This category of Subscription is intended primarily for Subscribers (such as schools or colleges) who wish to procure access to the Services for an agreed body of Users who will be granted such access either through collective or individual Passwords and is subject to the additional terms set out in Annex 1 to these Terms. Education Subscriptions shall, in every instance, be the subject of separate negotiation.
(iii) Business Subscription: This category of Subscription is intended for Users who wish to use the Services to produce Derivative Works which they can use for business or professional purposes and is subject to the additional terms set out in Annex 2 to these Terms
In addition, Binumi may from time to time make the Services available to business counterparties for use by such counterparties, their customers and their end-users. All such use of the Services shall be on these Terms unless expressly otherwise agreed with such counterparties in writing, in advance.
(1) Registration Warranties. By registering to become a Subscriber of Binumi and/or by using the Services, you represent and warrant that:
(a) all registration information you submit is truthful and accurate;
(b) you will maintain the accuracy of such information; and
(c) your use of the Services does not violate any Applicable Law.
(2) Applicable Law. Any application to become a Subscriber is void and the Services may not be used where prohibited by Applicable Law.
(3) Discretionary Refusal. Binumi shall be entitled to refuse to accept Subscriptions in its sole discretion.
(4) Children's Online Privacy
(a)Because many visitors to the Binumi Site are children, Binumi takes the utmost care to make certain that its Content is appropriate for children of all ages. Binumi does not ask children to disclose personal information. Children should obtain permission from a parent or guardian before contacting Binumi in any regard, particularly before entering any personal information or requesting information.
(b)The US Children's Online Privacy Protection Act ("COPPA"). Binumi does not generally solicit personally identifiable information from children. COPPA requires web sites that provide content for children (which includes the Binumi Site) - or which know that a visitor to their site is a child under the age of 13 - to follow specific Federal Trade Commission rules. On the Binumi Site, it is necessary and desirable for us to collect information for the purpose of assigning a privacy protected user name and password. In our attempt to fully comply with the FTC rules, we would like you to know that:
(i) Personally identifiable offline contact information for children will not be collected without prior parental consent.
(ii) Personal online contact information for children will not be solicited and collected without prior parental consent or parental notification, which will include an opportunity for the parent to prevent use of the information and the child's use of the Services. Without prior parental consent, online information will only be used to (a) respond directly to the child's email comment or request for information, (b) to protect the security or integrity of Binumi; (c) to respond to judicial or other legal process; and (d) to the extent permitted by Applicable Law, to provide information to law enforcement agencies or for an investigation on a matter related to public safety, and will not be used for any other purposes.
(iii) Binumi will not entice any child or adult, regardless of their age, to divulge more personal information than is needed to use the Services or participate in any online activity offered on the Binumi Site.
2. Duration of Agreement and Category of Subscription
(1) These Terms, as amended from time to time, shall remain in full force and effect for so long as you are a Subscriber or a User of the Services.
(2) Subscriptions are either free Subscriptions or paid Subscriptions. Paid Subscriptions entitle the Subscriber to access additional Services which are not available on the free service.
(3) Where you are a Subscriber who is paying to access the Services your agreement with Binumi shall continue for as long as you continue to pay Charges or until your agreement with Binumi is terminated as provided in Section 7 (Termination).
3. Subscription Charges
(1) The right of any User to access and use the Services is (save where Binumi allows free use of the Services or any part of them) conditional in all respects on payment of applicable Charges.
(2) Charges payable are set out under each different category of Subscription on the Binumi Site and may be changed from time to time.
(3) All Charges are payable in advance prior to use of the Services.
(4) The level of Charges paid will dictate the extent of a Subscriber's right (and where permitted the right of Users who are not Subscribers) to access the Services.
(5) Save where otherwise agreed with Binumi, Charges are payable annually in advance with the first payment becoming due at the time of registering to become a Subscriber. Subscriptions may be purchased for longer periods on application.
(6) A Subscriber may upgrade the level of Subscription at any time by paying the additional Charges associated with a different level of Subscription and thereby acquire a more extensive right to use the Services.
(7) A Subscriber may refresh a Subscription and rights to use the Services at any time by paying Charges for a further subscription period.
(8) If Binumi terminates a Subscription because the Subscriber (or any User having the right to use the Services pursuant to such Subscription) has breached any of these Terms, the Subscriber shall not be entitled to a refund of any unused portion of Charges paid.
(9) Binumi will treat any personal data provided by a Subscriber in connection with payment of Charges with complete confidentiality and will not release the same to any person save to its payment processing partner responsible for processing payment. You hereby authorise such release and agree Binumi shall have no responsibility for release of such data to such party.
4. Refund Policy
Binumi operates a Refund Policy for Subscribers subscribing to use the Services. The terms of the Refund Policy are as follows:
(1) A Subscriber who has subscribed to the Services may terminate the Subscription if the account has not been activated at any time within the first 28 days of being accepted as a Subscriber. In such circumstances the Subscriber cancelling his Subscription must do so in writing (email cancellation will be accepted) to be received by Customer Services within the required time frame and Binumi will fully refund all Charges paid by the Subscriber so cancelling.
(2) A Subscriber who has subscribed to the Services and who has activated his or its account, but has purchased or used no more than a single item of Content may terminate the Subscription at any time within 10 days of being accepted as a Subscriber. In such circumstances, the Subscriber cancelling must do so in writing (email cancellation will be accepted) to be received by Customer Services within the required time frame and Binumi will fully refund all Charges paid by the Subscriber so cancelling. Subscriptions which do not fall within the scope of Section 4 (1) or this Section 4 (2) are not eligible for cancellation or refund.
(1) When you sign up to become a Subscriber, both you and any Users having access to the Services pursuant to your Subscription will also be asked to choose a Password. Users are entirely responsible for maintaining the confidentiality of their Passwords and all Subscribers agree not to let any third party access the Services using their Password.
(2) Each User agrees not to use the account, username, email address or password of another User at any time or to disclose their Password to any third party save where expressly authorized by Binumi. Wrongful use of a Password shall entitle Binumi to suspend Subscription privileges with immediate effect.
(3) Save where a specified body of Users is authorized to use a single Password under an Educational or Business Subscription or otherwise authorized by Binumi, the right to use the Services is granted for individual use only. Sharing of Passwords by Users with the intent of allowing use of the Services by additional Users under a single Subscription is strictly prohibited and will lead to immediate termination of the right to use the Services. If any Subscriber wishes to allow additional Users to use the Services he or it should apply for one or more further Subscriptions.
(4) Each Subscriber agrees to notify Binumi immediately if he or it suspects any unauthorized use of his or its account or access to his or its Password. Each Subscriber is solely responsible for any and all use of his or its account.
6. Use by Subscribers and all authorized Users
(1) Except as otherwise provided in these Terms, all Content is provided “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to, implied representations, warranties or conditions of merchantability, or fitness for a particular purpose. Binumi does not represent or warrant that the Content or the Services will meet any Subscriber’s requirements or that use of the Content or Services will be uninterrupted or error free.
(2) While Binumi has made reasonable efforts to correctly categorize, keyword, caption and title it’s Content, it does not warrant the accuracy of such information, nor of any metadata provided with the Content.
(3) The Services are for the personal use of Subscribers and authorised Users. They are intended primarily to allow Users to use the Services to create, edit and publish multimedia videos utilising Binumi’s Multimedia Library and other Content. They also allow Subscribers and other Users to combine Binumi’s Content with their own proprietary footage, to add music and voiceovers and make other adjustments and then to share and publish the resulting Derivative Work.
(4) The Services also include the right to use User Storyboards. Whilst the original User Storyboard will remain untouched other Users may make unlimited numbers of Derivative Works from a User Storyboards once a User shares a User Storyboard. In making a decision to share a User Storyboard, the User who created the User Storyboard hereby grants, on an irrevocable basis, all and any rights that may be required to other Users and other third parties to use and make such modifications to the User Storyboard as they may wish.
(5) All use of the Services by Users must be proportionate and reasonable.
(6) Unless a Subscriber has subscribed to use the Services as a Business Subscriber the Services may not be used for commercial purposes save where this is expressly otherwise authorised by Binumi in writing. Binumi reserves the right to remove commercial content in its sole discretion.
(7) Illegal and/or unauthorised use of the Services, including, without limitation, collecting usernames, user ID numbers, and/or email addresses of Subscribers or other Users by electronic or other means for the purpose of sending unsolicited emails or unauthorized framing of or linking to the Services, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized data collection or solicitation may be removed from Subscriber or User profiles without notice or explanation and may result in termination of Subscription privileges. Binumi reserves the right to take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorised use of the Services.
(8) Subject to the provisions of Section 6(9) below, Users are permitted to combine Multimedia Library footage and other Content comprised within the Services with music files in the creation of film or video footage. It is, however, an express condition of any use of music files that once downloaded the music files are not to be used for any other purpose other than for use in conjunction with the Multimedia Library footage with which they are first used by the User who downloads them. In particular, but without limitation, Users shall not deconstruct or use such music files with any other material and any such use shall be viewed and treated as a breach of the terms of a Subscription or use entitling Binumi to terminate a User’s right to use the Services forthwith. Any such termination shall be without prejudice to any rights Binumi or any third-party owner of such music rights may have against that User in connection with such breach.
(9) Notwithstanding the provisions of Section 6(8) above certain footage, image or music files are designated as being attributable to featured artists and the use of such files is subject to commercial restrictions.
(10) Users may from time to time be invited to participate in competitions to make short music videos combining footage provided by a band or other performing artist with other Content downloaded from the Binumi Site. It is an express condition of participation in such competitions that any resulting video is subject to these Terms, that no intellectual property rights in the resulting video shall pass to the User and, save in respect of Business Subscriptions, that the video may not be commercialised in any way without the prior written consent of Binumi.
(11) Notwithstanding any other provision of these Terms it is an express term of the use of the Services that no User may sell any part of the Multimedia Library as stand-alone clips/ files, or include any part of the Multimedia Library in any other media product, library, or collection for distribution or resale.
(12) Multimedia Library footage may contain a Binumi watermark. Save in the case of Business Subscriptions, the Binumi watermark may not be removed under any circumstances save as expressly otherwise permitted. Any unauthorised removal of the Binumi watermark by a User will be treated as a material violation of these Terms and will result in immediate termination of a Subscriber's Subscription and of his or its right to use the Services.
(13) For the avoidance of all doubt, every User shall, notwithstanding the termination of any applicable Subscription continue to be permitted to use any Derivative Work containing Content derived from the Binumi Site created during the period of any relevant Subscription after such termination PROVIDED ALWAYS that such User shall not be permitted after such termination to decompile a Derivative Work and use individual pieces of Content included in the Derivative Work in any other way or to use such Derivative Work for commercial purposes unless otherwise agreed. In the foregoing respect Binumi hereby grants to each User a perpetual worldwide Licence to use the Derivative Work to use and exploit such Derivative Work on the terms set out herein.
(14) Without prejudice to any other provision in these Terms, Binumi shall, in addition, and without limitation, be entitled to terminate any Subscription forthwith if it discovers that any User using the Services has misrepresented himself as being the representative of any organisation with which he is not connected or has published any video or other content using the Services under a stolen identity.
(15) Footage contained within Binumi’s Multimedia Library is freely available for use by all Subscribers for internal purposes. Subscribers – and especially Business Subscribers - should note, however, that where it is intended to produce Derivative Works for public dissemination of any kind it may be necessary in some cases to obtain releases from or in respect of people, places or other Content featured in such Derivative Works. This is particularly the case where a Subscriber features any image of a person which is capable of recognition in a Derivative Work which the User intends to use in a political, advertising or other campaign. Binumi gives no warranty of any kind that all required releases have been obtained. It shall be the responsibility of Subscribers and their Users to decide whether releases are required for public dissemination of footage from the Multimedia Library included in any Derivative Works and to obtain any such release as may be necessary and Binumi shall have no liability arising from any failure by a Business Subscriber to do so. The attention of Subscribers is drawn in particular to the possible need to obtain releases for the use in Derivative Works of Content which depicts:
(a) certain well-known locations
(b) recognisable faces particularly the use of close-ups
(c) recognisable trademarks and logos
(d) events of any kind where it would be reasonable to assume that the organisers of such events might wish to control distribution of images of the event for commercial purposes.
(1) Any agreement entered into by Binumi with any Subscriber for a specific duration shall terminate at the end of the relevant Subscription period if further Charges are not paid for a renewed Subscription period.
(2) Notwithstanding any other provision hereof Binumi may terminate any Subscription account and the right to use the Services if the Subscriber or any User accessing the Services under that Subscription account is in breach of any provision of these Terms. Such termination may be effected with or without prior notice irrespective of whether such breach is or has been cured.
(3) Without prejudice to the provisions of Section 7(2) above Binumi may terminate a Subscriber’s account and his or its right to access the Services at any time with or without notice if the Subscriber or any User authorised by the Subscriber:
(a) provides any registration information which is untrue or misrepresents his or its identity in any way; or
(b) accesses the Services using a stolen identity or represents himself as a representative of an organization with which he is not connected; or
(c) misuses his or its Password to allow unauthorized Users to access the Services; or
(d) deconstructs or uses music files with any material other than footage from the Multimedia Library; or
(e) uses the Services in any manner which is disproportionate or which impacts adversely on any other User; or
(f) infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity; or
(g) uses Content in breach of any of the Prohibited Uses specified in Section 8 below; or
(h) attempts to harvest the footage in the Multimedia Library or any part of it; or
(i) uses the Services for any activity prohibited pursuant to the provisions of Section 11 below; or
(j) uses the Services in breach of Applicable Law.
(4) If you are a Subscriber using Binumi’s free service Binumi may terminate your Subscription at any time, for any reason, with or without prior notice or explanation, and without liability.
(5) Binumi reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, emails and instant messages (collectively, “messages”) by any Subscriber, or to deny, restrict, suspend, or terminate a Subscriber’s access to all or any part of the Services at any time, for any reason, with or without prior notice or explanation, and without liability.
(6) Binumi expressly reserves the right to remove a Subscriber’s profile and/or deny, restrict, suspend, or terminate a Subscriber’s access to all or any part of the Services if Binumi determines, in its sole discretion, that that Subscriber has violated any of these Terms or poses a threat to Binumi, its employees, business partners, Users and/or the public.
8. Prohibited Uses
In order to provide complete clarity as to what uses may not be made of Content or the Services the following uses are expressly prohibited and, save as otherwise expressly provided, Users may not:
(1) Save where a User has purchased an Extended Licence, use Content in design template applications intended for resale, whether on-line or not, including, without limitation, website templates, Flash templates, business card templates, electronic greeting card templates, and brochure design templates;
(2) Save where a User has purchased an Extended Licence, use or display the Content on websites or other venues designed to induce or involving the sale, license or other distribution of “on demand” products, including postcards, mugs, t-shirts, posters and other items (this includes custom designed websites);
(3) Save where a User has purchased an Extended Licence, use the Content in any posters (printed on paper, canvas or any other media) or other items for resale, license or other distribution for profit;
(4) Save where a User has purchased an Extended Licence, use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
(5) Other than for the purpose of modifying a User Storyboard, incorporate the Content in any product that results in a re-distribution or re-use of the Content (such as electronic greeting card web sites, web templates and the like) or is otherwise made available in a manner such that a person can extract or access or reproduce the Content as an electronic file;
(6) Use the Content in a fashion that is considered by Binumi (acting reasonably) or under Applicable Law to be pornographic, obscene, immoral, infringing, defamatory or libelous in nature, or that would be reasonably likely to bring Binumi or any person or property reflected in the Content into disrepute;
(7) Use or display any Content that features a person in a manner:
(a) that would lead a reasonable person to think that such person uses or personally endorses any business, product, service, cause, association or other endeavour; or
(b) except where accompanied by a statement that indicates that the Content is being used for illustrative purposes only and any person depicted in the Content is a model, that depicts such person in a potentially sensitive subject matter that would be reasonably likely to be offensive or unflattering to the person reflected in the Content;
(8) Reverse engineer, decompile, or disassemble any part of the Services or any computer code comprised within the Services;
(9) Remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
(10) Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Content or the rights granted under these Terms or attempt to do any of the foregoing;
(11) Install and use the Content in more than one location at a time or post a copy of the Content on a network server or web server for use by other users;
(12) Use or display the Content in an electronic format that enables it to be downloaded or distributed via mobile devices or shared in any peer-to-peer or similar file sharing arrangement;
(13) Use Content for any commercial, promotional, endorsement, advertising or merchandising use unless expressly otherwise permitted in or by these Terms;
(14) Either individually or in combination with others, license or sell the Content, or an element of the Content, (including Content included within a Derivative Work) without obtaining an Extended Licence; or
(15) Include the Content in any Derivative Work with a view to creating merchandise for sale without obtaining an Extended Licence.
(16) Use Content from the Multimedia Library or any tool available on the Binumi Site for any commercial purpose after a Subscriber ceases to be a subscriber. For the avoidance of doubt such prohibition shall extend to the use of Content from the Multimedia Library or tools from the Binumi Site which a Subscriber may have passed to a third party - both during a period of Subscription or after such Subscription ends.
(17) Comprises any use of the Services or any Content from the Multimedia Library in any way that does not represent ‘fair use’ or is otherwise ‘excessive’. For these purposes in assessing whether use is fair or excessive the following matters shall be taken into account:
(a) the purpose and character of the use including in particular whether the use or proposed use is of a commercial nature;
(b) the nature of the use, including in particular where any use is intended to circumvent any of these Terms either in the short or medium term and either during or after the termination of an active subscription;
(c) the amount, substantiality and proportionality of the use, including in particular where the use or proposed use is excessive by reference to any subscription charges payable for such use;
(d) the effect of the use including where the use transfers Content from the Services for prospective future commercial exploitation.
9. Proprietary Rights in Content
(1) The Services include video clips, graphics, photographs files, images, musical works, applications and other materials and content of Binumi and its licensors. This Content is protected by copyright, trademark, patent, trade secret and other laws, and, save as otherwise provided herein, Binumi and its licensors own and retain all rights of any and every kind in the Content and the Services. Users shall not under any circumstances attempt to harvest the footage in the Multimedia Library or any part of it and any attempt to do so shall result in immediate and permanent exclusion of the person concerned from the Binumi Site without prejudice to any rights Binumi may have relating to such unlawful activity.
(2) The Services contain Third Party Content being Content of other Users and other licensors which Binumi is authorised to make available to Users through the Binumi Site.
(3) Binumi hereby grants to Subscribers and Users a limited non-exclusive, non-transferable, non-sub-licensable, revocable worldwide right and licence to reproduce, display, manipulate and combine Content with other content and otherwise use the Content or any of it in connection with Subscribers’ use of the Services in any project including the production of videos, educational videos, print projects, multimedia, games, promotional material, packaging, web-page design or other film based project of any and every kind whether on its own or in conjunction with Personal Content.
(4) The rights granted to Users as set out in Section 6 above are personal to those Users.
(5) Save for the limited licence to use the Content granted to all Users, Users shall not be entitled to nor may any User claim any proprietary rights in any Content provided as part of the Services nor may any part of such Content be used as a trademark or service. If a User provides any of the Content to a third person as part of his or its work product such person shall have no right to reuse the Content for any purpose other than a review of that User’s work without becoming a Subscriber.
(6) When a User uploads Personal Content onto the Binumi Site, such User shall continue to retain all such rights that you he or it may have in such Personal Content, subject to the limited licence following. Save in the case of a Business Subscriber where no licence to use Personal Content is granted by uploading any Personal Content a User hereby grants to Binumi a limited licence to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Personal Content solely on, through or in connection with the Services, including through Linked Services in any media formats and through any media channels, except that any of Personal Content marked "private" will not be distributed by Binumi outside the Services and Linked Services.
(7) Save in the case of a Business Subscriber where no licence to use Personal Content is granted, if a User removes Personal Content from the Services the limited licence set out above will terminate. If after Binumi has distributed Personal Content outside the Services, a User changes the privacy setting of Personal Content to “private” Binumi will cease distribution of such “private” Content outside the Services as soon as practicable. Notwithstanding the foregoing, all Users agree that once Personal Content is distributed to a Linked Service or incorporated into other aspects of the Services, Binumi is under no obligation to delete or ask other Users or a Linked Service to delete that Personal Content, and therefore it may continue to appear and be used indefinitely PROVIDED ALWAYS that by making a decision to publish a Derivative Work based upon a User Storyboard a User is granting an irrevocable licence to other Users and third parties to modify and distribute such Derivative Work in any manner they see fit.
(8) Save in the case of a Business Subscriber where no licence to use Personal Content is granted, the licence referred to in sub-Section 9(6) above is non-exclusive (meaning the User is free to license his or its Personal Content to anyone else in addition to Binumi), fully-paid and royalty-free (meaning that Binumi is not required to pay that User or anyone else deriving rights from the User for the use of his or its Personal Content that he or it uploads onto the Binumi Site), sub-licensable (so that Binumi is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the Services), and worldwide (because the Internet and the Services are global in reach).
(9) Each User represents and warrants that: (i) he or it owns all and any Personal Content uploaded onto the Binumi Site, or that he or it otherwise has the right to grant the licence set forth in this Section 9, and (ii) the uploading of Personal Content on, through or in connection with the Services and/or Linked Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. Save in the case of a Business Subscriber where no licence to use Personal Content is granted, each User agrees to pay all royalties, fees, and any other monies owing to any person or entity by reason of the use of any of Personal Content uploaded by that User onto the Binumi Site and disseminated through the Services and/or Linked Services. Each User further agrees to indemnify Binumi and hold it harmless from all and any liability Binumi may incur by reason of that User uploading Personal Content and its subsequent distribution whether combined with Binumi’s Content or with the content of any other User and whether distributed through Linked Services or otherwise.
(10) Binumi performs technical functions necessary to offer the Services, including, but not limited to, the technical processing and transmission of email communications to perform the email service provided as part of the Services, and transcoding and/or reformatting Content to allow its use throughout the Services. Each User agrees and acknowledges that Binumi may send messages including, but not limited to, notifications, special offers, promotions, commercial advertisements, and marketing materials, in connection with the Services. Users can control what type of communications they receive from the Services by logging into their account and choosing the appropriate notifications settings.
(11) Binumi reserves the right to limit the storage capacity of Personal Content that Users upload on, through or in connection with the Services.
10. Content Posted
(1) Please be extremely careful with any of Personal Content or any other information that you choose to upload onto the Binumi Site, that you use through or in connection with the Services and that you provide to other Users including any content included in a User Storyboard. For the avoidance of doubt where you upload content which is available for use by others you are warranting that you have the full right to use such content and to allow other Users and third parties to do so also. Your account profile may not include any form of Prohibited Content, as outlined in Section 8 above. Despite this prohibition, information, materials, products or services provided by other Users or Linked Services may, in whole or in part, be unauthorised, impermissible or otherwise violate these Terms, and Binumi assumes no responsibility or liability for any such material. If you become aware of misuse of the Services by any person or on any Linked Service, please click on the "Contact Binumi" or the "Report Abuse" link at the bottom of the Binumi Site pages.
(2) Binumi may reject, refuse to post or delete any of Personal Content for any reason, including, but not limited to, the fact that in the sole judgment of Binumi Personal Content violates any of these Terms or may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. Binumi assumes no responsibility for monitoring the Services for the purpose of identifying inappropriate content or conduct or for any other reason. If at any time Binumi chooses, in its sole discretion, to monitor the Services, Binumi nonetheless assumes no responsibility for Personal Content, no obligation to modify or remove any inappropriate Personal Content, and no responsibility for the conduct of any User submitting any such Personal Content.
(3) Users are solely responsible for the Personal Content that they upload onto or use through or in connection with any of the Services, and any material or information that you transmit to other Subscribers and for your interactions with other Users.
11. Content/Activity Prohibited
Without limitation in any way whatever to the Prohibited Uses set out in Section 8 above there are set out below
(a) examples of the kind of content that is either illegal or which it is prohibited to upload onto or to use or display through or in connection with the Services; and
(b) examples of the kind of activities which are prohibited.
Binumi reserves the right to investigate and take appropriate legal action against anyone who, in it's sole discretion, violates this provision, including, without limitation, removing offending Personal Content from the Binumi Site or otherwise restrict its use in connection with the Services, terminating the Subscription of such violators and/or reporting such Personal Content or activities to relevant law enforcement authorities. Prohibited Personal Content or prohibited activities include, but are not limited, in the sole discretion of Binumi, to:
(1) Personal Content that is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
(2) Personal Content that harasses or advocates harassment of another person;
(3) Personal Content that exploits people in a sexual or violent manner;
(4) Personal Content that contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
(5) Personal Content that solicits or is designed to solicit personal information from anyone under 18;
(6) Personal Content that publicly posts information that poses or creates a privacy or security risk to any person;
(7) Personal Content that constitutes or promotes information that is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
(8) Personal Content that constitutes or promotes an illegal or unauthorised copy of another person's copyrighted work, such as providing pirated videos or pirated music or links to the same;
(9) Personal Content that involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
(10) Personal Content that contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
(11) Action that furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to, making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
(12) Action that solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from other Users;
(13) Action that involves commercial activities and/or sales without prior written consent from Binumi such as contests, sweepstakes, barter, advertising, or pyramid schemes;
(14) Personal Content that includes a photograph or video of another person that has been uploaded without that person's consent;
(15) Personal Content that uses sexually suggestive imagery or any unfair, misleading or deceptive Content intended to draw traffic to the profile;
(16) Action that Violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
(17) Action that Comprises criminal or tortious activity, including, but not limited to, child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, defamation, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
(18) Action that Comprises advertising to, or solicitation of, any User to buy or sell any products or services through the unauthorised or impermissible use of the Services;
(19) Action that is activity which circumvents or modifies, attempts to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the Services;
(20) Activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
(21) Action that comprises modifying, copying, distributing, downloading, scraping or transmitting in any form or by any means, in whole or in part, any Content from the Services other than Content which you legally upload onto the Binumi Site or which you use or display through or in connection with these Services;
(22) Action that comprises providing or using "tracking" or monitoring functionality in connection with the Services, including, without limitation, to identify other Users' views, actions or other activities on the Services;
(23) Action that comprises covering or obscuring the safety features (e.g., report abuse button) on your personal profile page, or any page by any means;
(24) Action that comprises interfering with, disrupting, or creating an undue burden on the Services or the networks or services connected to the Services;
(25) Action that comprises impersonating or attempting to impersonate Binumi or a Binumi employee, administrator or moderator, another User, or person or entity (including, without limitation, the use of email addresses associated with or of any of the foregoing);
(26) Action that comprises using the account, username, or password of another User at any time or disclosing your password to any third party or permitting any third party to access your account;
(27) Action that comprises selling or otherwise transferring your profile, your email address or url;
(28) Action that comprises using or distributing any information obtained from the Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
(29) Action that comprises displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the Services on behalf of that person, such as placing commercial content on your profile, links to e-commerce sites not authorized by Binumi, posting status or mood updates, blogs or bulletins with a commercial purpose, selecting a profile with a commercial purpose as one of your top friends, or sending messages with a commercial purpose;
(30) Action that comprises relaying email from a third party's mail servers without the permission of that third party;
(31) Action that Comprises using invalid or forged headers to disguise the origin of any Content transmitted to or through Binumi's computer systems, or otherwise misrepresenting yourself or the source of any message or Content;
(32) Action that comprises using any automated system, including, but not limited to, scripts or bots in order to harvest email addresses or other data from the Binumi Site for the purposes of sending unsolicited or unauthorized material;
(33) Action that comprises engaging in, either directly or indirectly, or encouraging others to engage in, click-throughs generated through any manner that could be reasonably interpreted as coercive, incentivized, misleading, malicious, or otherwise fraudulent; or
(34) Action that comprises using the Services in a manner that is inconsistent with any and all Applicable Law.
(35) Action that comprises any use of the Services or any Content from the Multimedia Library in any way that does not represent 'fair use' or is otherwise 'excessive'. For these purposes in assessing whether use is fair or excessive the following matters shall be taken into account:
(a) the purpose and character of the use including in particular whether the use or proposed use is of a commercial nature;
(b) the nature of the use, including in particular where any use is intended to circumvent any of these Terms either in the short or medium term and either during or after the termination of an active subscription;
(c) the amount, substantiality and proportionality of the use, including in particular where the use or proposed use is excessive by reference to any subscription fee payable for such use;
(d) the effect of the use including where the use transfers Content from the Services for prospective future commercial exploitation.
12. Protecting Copyrights and Other Intellectual Property
Binumi respects the intellectual property of others, and it require that its Users do the same. Users may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. It is Binumi's policy to terminate, in appropriate circumstances, the Subscription of repeat infringers. If any User believes that his or its work has been copied and posted on or through the Services in a way that constitutes copyright infringement, please send us a notification of claimed infringement with all of the following information:
(1) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(2) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Services (providing the url(s) of the claimed infringing material satisfies this requirement);
(3) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
(4) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
(5) a statement by you, that the above information in your notification is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf; and
(6) your physical or electronic signature.
For the avoidance of doubt, save in the instance of a User Storyboard, where the User is granting unlimited rights to other Users to reuse, modify, delete and distribute the User Storyboard as he or it sees fit, any all rights of any and every kind in any material uploaded to the Binumi Site by any Subscriber (or any User authorised by such Subscriber to use the Services) belonging to such Subscriber, User or another third party shall remain vested in the owner of such material and shall not under any circumstances be assigned or otherwise transferred to Binumi by reason of such upload.
13. Third Party Linked Services
(1) Linked Services created by third party developers may be available on, through or in connection with the Services. Linked Services include applications, websites, desktop, wireless, mobile and other services available from third parties which can be installed onto a User's profile or shared with other Users on the Services or which may link to a Subscriber's account from outside the Services. Linked Services may use ya User's profile information, friends and/or other profile content on the Linked Service and share activity events between Binumi and the Linked Service (depending on the features the Linked Service chooses to make available).
14. User Disputes
Users are solely responsible for their interactions with other Binumi Users, third party developers or any other parties with whom they interact through the Services and/or Linked Services. Binumi reserves the right, but has no obligation, to become involved in any way with these disputes.
(1) Binumi has gone to considerable lengths to ensure that it has all necessary rights to make the Multimedia Library and all other Content available to Users as part of the Services. To the extent, however, that any third party claims the use of any part of the Multimedia Library or other Content infringes its rights Binumi reserves the right to require that a User ceases to use such footage, image or audio clip until the matter is resolved and Binumi expressly disclaims all and any liability it may have to the User in relation to any aspect of its use or restriction of use of such footage, image or audio clip. For the avoidance of doubt where a User has published a User Storyboard he or it is warranting and undertaking that he or it has obtained all required permissions for the content contained therein and hereby agrees to indemnify Binumi and any third party User for and against all and any liability that Binumi or such User may suffer by reason of any infringement of third party intellectual property rights arising from the publishing of such User Storyboard.
(2) Binumi is not responsible for and makes no warranties, express or implied, as to the Third Party Content or the accuracy and reliability of such Third Party Content posted through or in connection with the Services or Linked Services, by Users of the Services or Linked Services, and such Third Party Content does not necessarily reflect the opinions or policies of Binumi.
(3) In addition, Binumi is not and shall not be responsible for any damage, injury or loss caused to any User by other Users of the Services or by any of the equipment or programming associated with or utilized in the Services or Linked Services.
(4) Profiles and Linked Services created and posted by Subscribers on, though or in connection with the Services may contain links to other websites or services. Binumi is not and shall not be responsible for the content, accuracy or opinions expressed on such websites and services, and such websites and services are not necessarily investigated, monitored or checked for accuracy or completeness by Binumi.
(5) Inclusion of any linked website or service on the Services does not imply approval or endorsement of the linked website or service by Binumi. When a User accesses any such third party site or service, he or it does so at your own risk. Binumi takes no responsibility and shall not be responsible for third party advertisements or Linked Services that are posted on, through or in connection with the Services or Linked Services, nor shall it be responsible for any goods or services provided by these third parties.
(6) Binumi is not responsible for the conduct, whether online or offline, of any User of the Services or any Linked Services.
(7) Binumi assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User communication.
(8) Binumi constantly monitors the Services with a view to ensuring they are of the highest quality. The Services, however, consist of many millions of digital and multimedia files and errors will inevitably occur from time to time. Binumi accepts no liability whatever for any such error as may occur and the limit of its responsibility shall be to correct such error in a timely manner as soon as practicable after being informed of the same.
(9) Binumi shall not be responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Services or Linked Services or combination thereof, including, without limitation, any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with the Services or Linked Services.
(10) Under no circumstances shall Binumi be responsible for any loss or damage, other than for causing personal injury or death due to its negligence, resulting from use of the Services or Linked Services, attendance at a Binumi event, involvement in a Binumi competition, from any third party content posted on or through the Services or Linked Services, or from the conduct of any other Users of the Services, whether online or offline.
(11) The Services and Linked Services are provided on an "as-is" basis and as available and Binumi expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Binumi cannot guarantee and does not promise any specific results from use of the Services or Linked Services.
17. Limitation of Liability
Without limitation to any of the disclaimers contained in Section 16 above Binumi shall not in any circumstances be liable to any User or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including, without limitation, loss of profit arising from use of the Services or Linked Services, even if Binumi has been advised of the possibility of such damages. Notwithstanding anything to the contrary contained herein and save in respect of any limitation expressly excluded by law (such as causing death or personal injury by reason of our negligence), Binumi's liability to any User for any cause whatsoever and regardless of the form of the action, will at all times be limited to the Charges paid by that User to Binumi for the Services during the term of the Subscription pursuant to which the User accessed the Services.
These Terms and all use of the Services in accordance with these Terms shall be governed by, and construed in accordance with, the laws of England, without regard to its conflict of law provisions. All Subscribers, all other Users and Binumi each agree to submit to the non-exclusive jurisdiction of the English courts to resolve any dispute arising out of these Terms or the use of the Services.
All Users agree to indemnify and hold Binumi, its subsidiaries, and affiliates, subcontractors and other partners, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, but not limited to, reasonable legal fees, suffered by Binumi arising out of their use of the Services in violation of these Terms and/or arising from a breach of these Terms and/or any breach of their representations and warranties set forth in these Terms and/or any of Personal Content that they post on, through or in connection with the Services.
If any Subscriber has any complaint about any aspect of the Services, he or it must raise the matter with Customer Services who shall consider the matter fairly and objectively and whose decision on the matter shall be final.
(1) Each User accepts these Terms each time he or it accesses the Binumi Site or uses any of the Services.
(2) Each User's agreement with Binumi will, at a minimum, always include these Terms.
(3) Each User's access and use of certain Services may require that User to download software or Content to accept additional terms and conditions applicable to such Services, software or Content in addition to these Terms.
(4) The failure of Binumi to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.
(5) The Section titles in these Terms are for convenience of reference only and have no legal or contractual effect.
(6) Binumi is a trademark of Binumi Agency (Hong Kong) Limited.
(7) If any provision of these Terms is determined to be unlawful, void or unenforceable, that provision shall be deemed severed from these Terms and shall not affect the validity and enforceability of any remaining provisions.
22. Modification of Terms
Binumi reserves the right to modify these Terms at any time and from time to time, and each such modification shall be effective immediately upon posting on the Binumi Site. Any User's continued use of the Services following any such modification constitutes that User's agreement to be bound by and his or its acceptance of these Terms as so modified. It is therefore important that every User reviews these Terms regularly. If a User does not agree to be bound by these Terms and to abide by all Applicable Law, that User is not authorised to use the Services and must discontinue such use immediately.
To contact us regarding any questions about these Terms, please use the 'Contact Binumi' form on the Binumi Site.
SPECIAL TERMS FOR EDUCATION SUBSCRIPTIONS
Educational Subscriptions are entered into by Binumi with an educational institution for on behalf of a body of student Users.
Each Educational Subscriptions shall be subject to an Enterprise Agreement which shall be separately negotiated in every case.
SPECIAL TERMS FOR BUSINESS SUBSCRIPTIONS
1. Commercial Use
(1) A Business Subscription allows Business Subscribers to use the Services for limited commercial purposes. Such purposes include the creation of Derivative Works for use in professional and business presentations, video presentations, catalogues, brochures, promotional greeting cards and other materials.
(2) The commercial publishing and use of any Derivative Works featuring Binumi Content is only permitted when an active Business Subscription is in place. Commercial publishing of Derivative Works is not permitted after termination of a Business Subscription.
(3) Certain clips – both music and video footage - are not available for commercial use. The restriction on use is conveyed via a badge notification on the thumbnail which is further brought to the attention of the User if the clip is selected for use.
(4) Users of the Services pursuant to a Business Subscription will be provided with access to Analytics and Business Subscribers can purchase Landing Pages.
Business Subscriptions are for a minimum term of twelve (12) months.
Charges payable for a Business Subscription shall be the applicable Charges specified on the Binumi Site from time to time and are payable in advance.
4. Extended Licence
(1) If a Business Subscriber wishes sell Derivative Works or license their re-use it must apply for an Extended Licence. For the avoidance of doubt the lack of an Extended Licence shall not restrict a Business Subscriber in any way from using a Derivative Work for its own business purposes including without limitation the creation of advertisements but it may not sell or otherwise authorise the re-use of such Derivative Work.
(2) Business Subscribers who wish to use Derivative Works in entertainment applications such as books (including electronic books), book covers, magazines, newspapers, editorials, newsletters and in video and other presentations intended to be sold to the mass market or to sell merchandise featuring Content shall only be permitted to do so if they purchase an Extended Licence.
(3) A Business Subscriber may not use any Content as part of a trademark, design mark, trade name service mark or logo unless it has purchased an Extended Licence
(4) The requirements for the grant of Extended Licence are available on application to Binumi.
5. Rights of Use
A Business Subscription gives a single User the right to access the Services. Should a Business Subscriber wish to allow more than one staff member/User to use the Services he or it should apply for authorization for such number of additional Users to be able to access the Services as may be required. An additional Charge will be levied for each additional User which is payable in advance. Additional Users may be included within the Business Subscription at any time.
6. Sharing Derivative Works by Non-Business Subscribers
(1) It is a fundamental feature of the Services that Users can share Derivative Works created using the Services with third parties. It is, however, also a term of use that non-business Subscribers (ie Subscribers pursuant to Personal and Educational Subscriptions) may not use Derivative Works for commercial purposes without the express prior consent of Binumi. For this reason, the Services contain a feature which blocks incoming Derivative Works (including Derivative Works posted on storyboards) from Personal and Educational Subscribers. This feature is TURNED OFF as a default but may be turned on by a Business Subscribers' designated administrator for specific Users authorized within their Subscription or for all Users within their Business Subscription.
(2) To the extent that Business Subscribers turn on the sharing function they should note that they may not use Derivative Works (including Derivative Works posted on storyboards) made available by Personal or Educational Subscribers as these Subscribers do not have the right to use such Derivative Works for commercial purposes and may only share Derivative Works with Users within their own or another Business Subscription. To the extent that a Business Subscriber accepts Derivative Works from a Personal or Educational Subscriber Binumi may terminate that Subscriber's Business Subscription forthwith and without notice and the Business subscriber shall be liable for all and any damage that Binumi may incur by reason of such unauthorized sharing.
Business Subscribers and all Users authorized to use the Services pursuant to a Business Subscription shall be entitled to remove any Binumi watermark from Multimedia Library footage included in Derivative Works.
8. High Resolution Files
Business Subscribers shall, for the avoidance of doubt, be permitted to download finished Derivative Works which include High Definition (HD) video files from the Multimedia Library and to use them for commercial purposes but otherwise subject always to these Terms.
9. Content 'Not for Commercial Use'
Notwithstanding any other provision of these Terms a Business Subscriber may not use any Content marked "not for commercial use" for any commercial, promotional, advertorial, endorsement, advertising or merchandising purpose in any Derivative Work for license or resale.
10. Creator of Derivative Works
A Business Subscriber shall not falsely represent or imply in any Derivative Work that he or it is the original creator of a Derivative Work that is made up largely of licensed Content.
11. Core Terms
For the avoidance of doubt the Core Terms shall apply to every Business Subscription save to the extent qualified by the provisions set out in this Annex 2
MOBILE END-USER LICENCE
1. Mobile End-User Licence Definitions
For the purposes of this section of these Terms only the following initially capitalized expressions shall, where used, have the meanings set out next thereto:
Apple: means Apple, Inc.
(i) the mobile software application accompanying this Licence, including, without limitation, any software code, scripts, interfaces, graphics, displays, text, documentation and other components;
(ii) any updates, modifications or enhancements to the items listed in subsection (i); and
(iii) any specific website the Application directs you to via any browser located on a Mobile Device
Licence: means the licence set out in this Annex 3 to use the Application subject to the Terms.
Mobile Device: means an iPhone or any other mobile device.
Objectionable Content: includes, but is not limited to: (i) sexually explicit materials; (ii) obscene, defamatory, libelous, slanderous, violent and/or unlawful content or profanity; (iii) content that infringes upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary right, or that is deceptive or fraudulent; (iv) content that promotes the use or sale of illegal or regulated substances, tobacco products, ammunition and/or firearms; and (v) gambling, including without limitation, any online casino, sports books, bingo or poker.
Usage Rules: means the usage rules set forth in Apple's App Store Terms of Service which, by downloading the Application, the Subscriber and any User will be deemed to have acknowledged that he has reviewed and agreed and which are incorporated herein by this reference
2. General. The Application is licensed to the Subscriber by Binumi for use by the Subscriber and all Users strictly in accordance with the terms and conditions of the Licence, and any Usage Rules. By installing the Application, you agree to be bound by this Licence and understand, without limitation, that there is no tolerance for Objectionable Content. If you do not agree with the terms and conditions of this Licence, you are not entitled to use the Application.
3. Acknowledgement. Binumi, and not Apple, is solely responsible for the Application and the content thereof and for the avoidance of all doubt the Subscriber and all Users hereby acknowledge, alongside Binumi, that the agreement to use the Services via the Application on these Terms is concluded exclusively between Binumi and the Subscriber (and where applicable any relevant User) and not with Apple.
4. Licence. Binumi hereby grants to the Subscriber and to any Users a non-exclusive, non-transferable limited right and license to install and use the Application on a single Mobile Device that the Subscriber or any User owns or controls and to access and use the Application on such Mobile Device as permitted by this Licence, the Usage Rules and these Terms.
5. Maintenance. Binumi is solely responsible for providing maintenance and support services with respect to the Application and the Subscriber and all Users hereby acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application.
6. Exclusion of Liability and Warranty:
(i) Without prejudice to any other exclusion of liability contained in these Terms the Subscriber and all Users hereby acknowledge and agree that the Application is provided on an 'as is' and 'as available' basis and the use of the Application by the Subscriber and all Users is at their sole risk and discretion.
(ii) All representations and warranties regarding the Application and any third party content associated therewith or the Services accessible thereby, whether express or implied and including without limitation any warranties of merchantability or fitness for a particular purpose are hereby excluded and disclaimed.
(iii) Binumi is solely responsible for any and all product warranties, whether express or implied by law, that are applicable to the Application to the extent these are not effectively disclaimed. In the event of any failure of the Application to conform to any applicable warranty, the Subscriber may notify Apple, and Apple will refund the purchase price for the Application to that Subscriber. Apple will have no other warranty obligation whatsoever with respect to the Application and the obligation of Apple to make such refund shall be its sole obligation and Apple will, to the maximum extent permitted by Applicable Law, have no liability for any other claims, losses, liabilities, damages, costs or expenses of any kind whatsoever and any failure of the Application to conform to any warranty will be the sole responsibility of Binumi.
7. Product Claims. The Subscriber and all Users who use the Services acknowledge that Binumi, not Apple, is responsible for addressing any claims of the Subscriber, any Users or any other third party relating to the Application or the Subscriber's or any Users' possession and/or use of that Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. These Terms shall not limit the liability of Binumi beyond what is permitted by applicable law.
8. Intellectual Property Rights:
(i) Without prejudice to any other provision of these Terms you hereby acknowledge and agree that the Application and all copyright, trademarks, trade secrets and other intellectual property associated therewith are, and shall remain the property of the Company at all times. Except for the right to install and use the Application on a Mobile Device the Subscriber and all users are not granted any rights in or to the Application whatsoever and all such rights as may exist are reserved to and retained by Binumi.
(ii) In the event of any claim from any third party that the Application or the Subscriber or any User's possession or use of the Application infringes the intellectual property rights of that third party you acknowledge that Binumi and not Apple will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
9. Objectionable Content: In order to ensure that Binumi provides the best experience possible for everyone, we strongly enforce a no tolerance policy for Objectionable Content. If you see inappropriate content, please use the "Report" feature found within each video post. Content may not be submitted to Binumi, who will moderate all content and ultimately decide whether or not to post a submission to the extent such content includes, is in conjunction with, or alongside any, Objectionable Content.
10. Export Control: The Subscriber hereby represents and warrants that (i) he/she/it is 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) he/she/it is not listed on any U.S. Government list of prohibited or restricted parties.
11. Developer Name and Address: Should the Subscriber or any User have any questions, complaints or claims with respect to the Application these should be directed to Binumi via the 'Contact Us' link located on the Binumi Site.
12. Third Party Beneficiary: The Subscriber and all Users hereby acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of these Terms and any agreement concluded containing these Terms, and that, upon the Subscriber's acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against the Subscriber and any Users as a third party beneficiary of these Terms.
STORYBLOCKS END-USER LICENSE AGREEMENT
A. Interpretation. In this End-User License Agreement initially capitalized expressions set out below shall have the meanings set out next thereto:
Stock Files: means Storyblocks media content including graphics, video, audio fonts, photos and/or other files made available by Storyblocks to Subscribers from time to time.
Storyblocks or we or us or our: means Footage Firm, Inc., the operator of videoblocks.com, graphicstock.com, and audioblocks.com.
You or your: means any Subscriber to the Binumi Services who uses Sock Files pursuant to their subscription.
Any use by you of Storyblocks Stock Files is strictly subject to the terms of this End-User License with Storyblocks in addition to the other Terms governing your Subscription.
B. Your Rights. We, Storyblocks, grant you a perpetual, worldwide, limited, non-exclusive, non-transferable right to incorporate the Stock Files you obtain from us via your Binumi Subscription into any work you create. You may incorporate our Stock Files into any project, including feature films, broadcast, commercial, educational, print, multimedia, games, merchandise, and the Internet. Once you incorporate a Stock File into your project, you can share your finished project freely both during and after termination of this this End-user License, but you may not share the underlying individual Stock File as a standalone file with a third party. (However, you can share the Stock Files with your client or other third party for the limited purpose of getting their help with your specific project, assuming you are adding substantial value to the project apart from the Stock Files. Otherwise, they need their own license.) You also agree to use your best efforts to secure the Stock File from being accessed by a third party as a standalone file, but since that's not always possible, your inability to prevent copying will not be considered a breach of this License.
C. Our Guarantee. We promise that if you use our Stock Files as described in this License, your use will not infringe on the rights (such as copyrights) of a third party (the "Limited Warranty"). We'll also put our money where our mouth is. In fact, we will provide you up to $20,000 in indemnification if you incur any direct damages from our breaking this promise. Because that's a big number, we need to make a few things clear, so here come some capital letters. IN NO EVENT, INCLUDING NEGLIGENCE, SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND. OUR MAXIMUM AGGREGATE LIABILITY FOR ALL BREACHES OF THE LIMITED WARRANTY WILL BE LIMITED TO THE LESSER OF THE ACTUAL, DIRECT DAMAGES SUFFERED BY YOU DIRECTLY ARISING FROM SUCH BREACH AND TWENTY THOUSAND DOLLARS.
Note that trademarks, logos, or copyrights depicted within our Stock Files are not covered by this guarantee. For example, if one of our videos depicts someone holding a brand-name beverage, that label may be protected by copyright and trademark law and should be used at your own risk. (We wouldn't want you to think that this License lets you reprint Coca-Cola cans.)
D. Limitations. There are a few other limitations we have put in place to protect our artists and other customers:
1. You cannot sell, license, or redistribute our Stock Files, nor can you build your own stock media site with our files. You cannot create a trademark or logo based on our Stock Files. You cannot use automation, such as computer scripts, to download or "scrape" high volumes of our Stock Files. Finally, you cannot use the Stock Files to harm minors, to encourage violence, or for an unlawful purpose, such as defamation.
2. For Stock Files that depict identifiable people ("Models"), you must not depict the Models in a way that a reasonable person would find offensive. Just to be clear, the issue is whether the depiction of the Models themselves is offensive, not whether your project as a whole may be offensive. For example, you could use Stock Files with Models in a documentary about a rare and embarrassing medical condition, but you should not depict the Models in a way that suggests they personally carry the condition, unless our video clip already depicts them that way.
3. For our audio Stock Files, your license does not restrict your right of public performance, but a cue sheet may be required to satisfy the requirements of Performance Rights Organizations ("PROs"). Also, this License allowed you to use our audio clips in YouTube videos, but since we are not associated with YouTube, we cannot prevent other people from incorrectly claiming that your video violates a copyright. If you get such a claim, let us know, and we will make our best efforts to help you resolve the problem. Still, platforms like YouTube could block your content for reasons beyond our control.
4. Some Stock Files may have additional restrictions, such as "editorial use only," which will be noted in the clip's details.
E. Other Legal Provisions. This part may not be fun to read, but it's important nevertheless.
1. This Agreement will be governed by the laws of the State of Delaware, excluding its body of law relating to conflicts of law and copyright law. If any provision of this Agreement is found invalid, the other provisions will not be affected.
2. Except for claims brought in small claims court, all disputes about this Agreement will be settled by arbitration pursuant to the rules of the American Arbitration Association ("AAA"), subject to the Federal Arbitration Act. The dispute may be arbitrated either by JAMS or AAA. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
The initially capitalised expressions set out in this Annex 5 shall where used in these Terms, have the meanings ascribed to them as set out below:
means statistics and insights on account and video activity, including projects created, video plays, and videos shared available to Users of the Services pursuant to a Business Subscription.
means all applicable laws, rules and regulations applying to your use of the Services;
Binumi: means both Binumi Agency Hong Kong Limited, a company incorporated in Hong Kong and 'Binumi', the trade name for the on-line multimedia content and editing platform available to Subscribers who subscribe to use the Services;
means the digital platform through which the Services may be accessed at the url: www.binumi.com.
means any person subscribing to use the Services with the intent of using the Services for business or professional purposes, being so categorised in his or its Subscription Application and paying additional Charges for the right so to use the Services.
mean (i) the subscription charges payable by Subscribers for the right to use the Services as the same are specified under each different category of Subscription on the Binumi Site; and (as applicable) (ii) any charges for additional Users; (iii) any charges for the purchase of Landing Pages; (iv) any charges for the purchase of an Extended Licence; and (v) any other charges levied in connection with a Subscription of any and every kind as the same may be amended from time to time.
includes video clips, graphics, photographs files, images, musical works, applications, or any other materials and all other content of Binumi available on the Binumi Site.
means the service provided by Binumi for dealing with queries raised by Users relating to their use or prospective use of the Services.
mean any work product produced using Content from the Multimedia Library (or any part of it) and/or any other part of the Services and, for the avoidance of doubt, including merchandise.
means a Subscriber who has entered into an Educational Subscription.
means the agreement entered into with an Educational Subscriber pursuant to which that Subscriber authorises named Users to access the Services via individual or collective Passwords.
means a licence granted to a Business Subscriber pursuant to Paragraph 4 of Annex 2 of these Terms where such Business Subscriber wishes to sell, license the use of or otherwise monetise copies of a Derivative Work in any media or to create and sell or otherwise monetise merchandise featuring Content which will require payment of Extended Licence Royalties.
Extended Licence Royalty:
means a royalty in an amount agreed directly with Binumi on a case by case basis in respect of each reproduction of a picture obtained from Content in any Derivative Work and, for the avoidance of doubt in each picture obtained from Content which features on each item of merchandise featuring Content sold, licensed or otherwise monetized pursuant to an Extended Licence.
mean bespoke pages which allow finished videos to be published in a url link that can be shared digitially. Landing Pages can be designed within the Binumi Site with the facility to add images, text and logos using a rich text editor. Business Subscribers can purchase multiple Landing Pages as an add-on to their Subscription at any time.
includes the applications, widgets, websites or mobile, desktop or other services which are linked with any User's Binumi account.
Mobile Application End-user Licence:
means the right for Subscribers to install and use Binumi’s mobile Application on a Mobile Device on the terms of the Mobile Application End-user Licence set out in Annex 3
means that library of documentary film footage, images, and audio clips available to Users subscribing to use the Services.
means that private password selected by each User (or multiple Users in the case of Educational Subscribers who elect to use a common Password for all their Users) to access and use the Services.
means any content owned or controlled by a User and uploaded or created by a User for use in conjunction with the Services.
means any Subscriber who is not a Business Subscriber or a Subscriber pursuant to an Educational Subscription and who is categorised as a Personal Subscriber in his Subscription application and who does not pay additional Charges for the privileges of a Business Subscription. In certain instances, and from time to time Binumi may allow Personal Subscribers limited access to the Services free of charge (but shall have no obligation to do so). For the avoidance of all doubt where Binumi does allow a Personal Subscriber free use of any part of the Services these Terms shall apply to his Subscription and to his use of the Services in exactly the same way as if he was a paying Subscriber.
means sharing Derivative Works directly in any way, including without limitation on social media sites such as Facebook and YouTube, emailing of direct video links, hosting and showcasing videos on a User's private video wall created within the Services and inviting others to visit and 'publishing' shall be construed accordingly. Business Subscribers have the additional facility to publish Derviative Works via the creation of bespoke Landing Pages and shared url links.
means the policy allowing Subscribers to claim refunds of Charges in certain limited circumstances specified in Section 4 of the Terms.
provide Users with a non-exclusive licence to use Binumi's Multimedia Library editing tools and other content to create, edit and Publish their own videos. Users are able to upload their own content for inclusion in their videos and to share these socially or where authorized to commercialise the same. The Services include online tutorials and help sections which give Users the opportunity to learn video making techniques and navigate the Binumi Site and an online support and help service.
Storyblocks End-user Licence:
means the right for Subscribers to use Storyblocks Stock Files on the terms of the Storyblocks End-user Licence Agreement set out in Annex 4.
means any person subscribing to use the Services whether a Personal Subscriber, a Business Subscriber or an Education Subscriber.
Subscriber's Account Page:
means that page on the Binumi Site containing the Subscriber's account details and other information.
means subscription by a Subscriber to use the Services.
mean these Terms including the Annexes.
Third Party Content:
means any Content the rights in which belong to third parties but which Binumi is entitled to license for use by Users on these Terms.
means any person using the Services whether a registered Subscriber, or not, and, for the avoidance of doubt, including all Users using the Services pursuant to a Password issued by agreement between a Subscriber and Binumi.
a User Storyboard is a video structure which may include Content for the Binumi Site and/or User-uploaded content that a User publishes for other Users to use or adapt as they see fit. All Content in a User Storyboard may be modified, added to, or deleted including ,for the avoidance of doubt, both video and audio, User-uploaded content.
means any Subscriber or User to whom any part of these Terms may apply.
Application of Terms: These Terms constitute legally binding terms and govern use of the Services by all Subscribers, and by all Users where the User is using the Services pursuant to the Subscription of another User.