2nd June 2016
Binumi Agency (Hong Kong) Limited (“Binumi” or “we”) operates Binumi.com, which is an on-line multimedia content and editing platform that allows Subscribers to use the Multimedia Library to make their own videos and to share these with friends. The Services offered by Binumi include a licence to use its Multimedia Library, on-line tutorials giving Subscribers the opportunity to learn essential filmmaking techniques, on-line introductions, mash-up and idea sharing, competitions and other features, content, and applications offered from time to time by Binumi in connection with its business (collectively, the “Services”).
Interpretation: Initially capitalised expressions (Definitions) used in these Terms shall, save where the context otherwise requires, have the meanings ascribed to them set out in Annex 1 at the end of these Terms (or in respect of the Mobile Application End-User Licence below have meanings set out in paragraph 1 of the Mobile Application End-User Licence. In these Terms where relevant, the masculine may include the feminine and the impersonal and vice versa.
Binumi Mobile Application End-user Licence:
1. Mobile End-User License 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 License, 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
License: means the license to use the Application granted pursuant to this section of the Terms.
Mobile Device: 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.
Objectionable Content: 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
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 License, and any Usage Rules. By installing the Application, you agree to be bound by this License and understand, without limitation, that there is no tolerance for Objectionable Content. If you do not agree with the terms and conditions of this License, 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. License. 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 License, 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 merchatability 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, trade marks, 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.
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. Subscribers are strongly advised to familiarise themselves with these Terms before using the Services or authorising any User to do so.
Categories of Subscription: There are 3 classes of Subscription. Certain of these Terms apply only to specific categories of Subscribership.
i) Personal Subscription. This category of Subscription is intended for the individual User who only wishes to use the Services for private purposes.
ii) Commercial Subscription. This category of Subscription is intended for Users who may wish to use the Services to produce Derivative Works which they can use for business or professional purposes. Commercial Subscribers should pay particular attention to Condition 7 of these Terms.
iii) Education Subscription pursuant to an Enterprise Agreement. This category of Subscription is intended primarily for Subscribers (such as schools or colleges) who wish to become Subscribers to procure access to the Services for an agreed body of Users who will be granted such access either through collective or individual Passwords. Education Subscriptions shall, in every instance, be the subject of separate negotiation.
Each Subscriber shall be responsible for all aspects of their or its use of the Services both by such Subscriber and (where relevant) by any User who accesses the Services using a Password issued to that Subscriber including expressly where Users are allotted a Password pursuant to the terms of an Education Subscription.
Registration: By accessing and/or using the Services, you agree to be bound by these Terms. You are authorised to use the Services only if you have registered with Binumi, paid the Charges and on condition you agree to abide both by these Terms and by all Applicable Law. In addition, in consideration of becoming a Subscriber and acquiring the right to make use of the Services (and in certain circumstances authorising Users who are not Subscribers to use the Services), you must indicate your acceptance of these Terms during the registration process.
Sharing of Password Prohibited. Save where use of the Services is authorised by a specified body of Users under an Education Subscription, the right to use the Services is granted for individual use only. Sharing of Passwords by Subscribers 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.
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. Your continued use of the Services following any such modification constitutes your agreement to be bound by and your acceptance of these Terms as so modified. It is therefore important that you review these Terms regularly. If you do not agree to be bound by these Terms and to abide by all Applicable Law, you are not authorised to use the Services and must discontinue use of the Services immediately.
By registering to become a Subscriber of Binumi and 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. Use of the Services and registration to become a Subscriber entitled to use Services is void where prohibited by Applicable Law. Binumi shall be entitled to refuse to grant Subscriptions and the right to use the Services in its sole discretion.
2. Duration of Agreement
These Terms, as amended, shall remain in full force and effect for so long as you are a Subscriber or use the Services. You may terminate your Subscriptions at any time, for any reason, by following the instructions on the Subscriber's Account Page. Binumi may terminate your Subscriptions at any time, for any reason, with or without prior notice or explanation, and without liability. Furthermore, 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 you, or to deny, restrict, suspend, or terminate your 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. Binumi expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the Services if Binumi determines, in its sole discretion, that you have violated any of these Terms or pose a threat to Binumi, its employees, business partners, Users and/or the public. For the avoidance of all doubt, this provision and Sections 5-20 of these Terms and sections 3 and 6-11 of the Mobile Application End-user License at the beginning of these Terms will remain in effect, after any Subscription is terminated.
3. Subscription Charges
- The right of any User to access and use the Services is (save where Binumi allows free use of the Services) conditional in all respects on payment of relevant Charges.
- Charges payable are set out under each different category of Subscription on the Binumi Site and may be changed from time to time.
- All Charges are payable in advance prior to use of the Services by any User.
- 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.
- Subscribers may elect to pay Charges monthly, quarterly or 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.
- A Subscriber may upgrade the level of his or its Subscription at any time by paying the additional Charges associated with the higher level of Subscription and thereby acquire a more extensive right to use the Services.
- A Subscriber may refresh his or its Subscription and his or its right to use the Services at any time by paying Charges for a further subscription period.
- If Binumi terminates a Subscriber's Subscriptions because the Subscriber (or any User having the right to use the Services pursuant to such Subscriptions) has breached any of these Terms, the Subscriber shall not be entitled to a refund of any unused portion of Charges paid.
- Charges paid by Commercial Subscribers shall entitle such Subscribers to the additional privileges of Commercial Subscription specified in Section 7 of these Terms.
- Charges paid by Subscribers who have subscribed for an Education Subscription shall entitle use of the Services by the requisite number of Users specified in the Education Subscription. The number of such Users may be increased at any time by the Subscriber on its paying any additional Charges payable for such additional Users.
- Binumi will treat any personal data entered by Subscribers into the Binumi Site in connection with payment of Charges with complete confidentiality and will not release the same to any person save to our 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:
- A Subscriber who has subscribed to become a Subscriber of Binumi may, if he has not activated his account, terminate his Subscription at any time within 28 days of being accepted as a Subscriber. In such circumstances the Subscriber cancelling his Subscription must do so in writing to be received by Customer Services within the required time frame and Binumi will fully refund all Charges paid by the Subscriber so cancelling.
- A Subscriber who has subscribed to become a Subscriber of Binumi and who has activated his account, but has purchased or used no more than a single item of content may terminate his Subscribership at any time within 10 days of being accepted as a Subscriber. In such circumstances, the Subscriber cancelling his Subscription must do so in writing 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 Condition 4 (i) or 4 (ii) are not eligible for cancellation.
- If any Subscriber has any complaint about any aspect of the Services which he feels entitles him to terminate his Subscription he must raise the matter with Customer Services who shall consider the matter fairly and objectively and whose decision on the matter shall be final. Any willingness by Binumi to allow a Subscriber to terminate early shall be on the presumption, to which the Subscriber agrees, that Binumi shall have no liability of any kind to the Subscriber for or in respect of damage or loss the Subscriber alleges he may have suffered.
When you sign up to become a Subscriber, you will also be asked to choose a Password. Users who are given access to the Services pursuant to an Education Subscription will be provided with details of the Subscriber's Password unless individual Passwords have been requested. Users are entirely responsible for maintaining the confidentiality of their Passwords and all Subscribers agree not to let any third party to access the Services using their Password. Where a single Password has been issued under an Education Subscription for use by a specified body of Users, Subscribers agree that such group Password must be strictly limited to use by the specified body of Users only and details of the Password must not be released for use by any unauthorised third party. Wrongful use of a Password by unauthorised Users shall entitle Binumi to suspend Subscription privileges with immediate effect. Each User agrees not to use the account, username, email address or password of another Subscriber at any time or to disclose their Password to any third party. 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
- The Services are for the personal use of Subscribers and authorised Users and are intended primarily to allow Subscribers and such authorised Users the ability to use the Multimedia Library content in conjunction with on-line tutorials and other on-line advice where required to learn essential film-making techniques, to combine footage with the Subscriber's own footage, to add music and voiceovers and make other adjustments and to share resulting Derivative Works with friends and colleagues as part of an educative and entertaining process.
- All use of the Services by Subscribers (and any User) must be proportionate and reasonable. In the event that any User downloads a disproportionate amount of Content or otherwise acts in a manner which is unreasonable Binumi shall be entitled to terminate forthwith the Subscription of the Subscriber through whom such User has gained access to the Services. Such termination shall be without prejudice to the rights of Binumi against the Subscriber or User concerned for any breach of these Terms. Any Subscriber who has his Subscription terminated for such reason may appeal against such termination to Binumi who may accept or reject such appeal in its absolute discretion.
- In certain instances under an Education Subscription Users will, at the request of the Subscriber institution, be able to access, filter and download content available on the Binumi Site via one or more static terminals set by agreement with the Subscriber and placed in specified locations (such as in library). To the extent that Users permitted to access such terminals wish to sign up for the full Binumi Services they will be able to do so at such terminals with the consent of the Subscriber. Such Users will then be able to use the tools, storage and other features available as part of the Services both at the location of the fixed terminal and on mobile devices. Binumi will allocate such Users with Passwords and the Subscriber will pay Charges in relation to access of the Services by such User at the rates agreed in any relevant Enterprise Agreement.
- Unless a Subscriber has subscribed to use the Services as a Commercial Subscriber the Services may not be used for direct 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.
- Illegal and/or unauthorised use of the Services, including, without limitation, collecting usernames, user ID numbers, and/or email addresses of Subscribers by electronic or other means for the purpose of sending unsolicited email 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.
- Subject to the provisions of Section 6 (vii) below, Subscribers and authorised 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 your use of music files that once downloaded by you the music files are not to be used by you for any other purpose other than for use in conjunction with the Multimedia Library footage with which they were originally used by you. In particular, but without limitation, you shall not deconstruct or use such music files with any other material and any such use shall be viewed and treated as a breach by you of the terms of your Subscription entitling Binumi to terminate your Subscription forthwith. Any such termination shall be without prejudice to any rights Binumi or any third party owner of such music rights may have against you in connection with such breach.
- Notwithstanding the provisions of Section 6 (vi) above certain music files are designated as being attributable to featured artists and the use of such music is subject to commercial restrictions. Where any such music file is so designated it is not available for commercial use and download by Commercial Subscribers is prohibited.
- Subscribers and authorised 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 that the video may not be commercialised in any way without the prior written consent of Binumi.
- Notwithstanding any other provision of these Terms it is an express term of the use of the Services that no User (including Commercial Subscribers) 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.
- All Multimedia Library footage contains a Binumi watermark. The Binumi watermark may not be removed under any circumstances save as expressly otherwise provided herein. Any unauthorised removal of the Binumi watermark by a Subscriber will be treated as a material violation of these Terms and will result in immediate termination of a Subscriber's Subscription and of his right to use the Services.
- For the avoidance of all doubt, every Subscriber (and where applicable every User who is not a Subscriber but who is authorised by a Subscriber to use the Services) shall, notwithstanding the termination of that Subscriber's subscription to Binumi, subject to these Terms, continue to be permitted to use any Derivative Work containing Content derived from the Binumi Site created during the period of any relevant Subscriber's subscription to Binumi after such termination PROVIDED ALWAYS that such Subscriber and/or User shall not be permitted after such termination to decompile a Derivative Work created during a period of subscription and use individual pieces of Content included in the Derivative Work in any other way. In the foregoing respect Binumi hereby grants to the Subscriber and any User who has been authorised by the Subscriber to use the Services a perpetual worldwide licence to use the a Derivative Work to use and otherwise exploit such Derivative Work on the terms set out herein provided such use does not involve decompiling and using individual pieces of Content comprised in such Derivative work in any other way.
- Without prejudice to any other provision in these Terms, Binumi shall, in addition, and without limitation, be entitled to terminate any Subscriber’s Subscription forthwith if it discovers that that Subscriber or any User using the Services through the Subscription of that Subscriber 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.
7. Commercial Subscribers
- Any Subscriber may apply to become a Commercial Subscriber by agreeing to pay the higher Charges associated with Commercial Subscription. As with Personal Subscription, Commercial Subscription authorises use of the Services by a single User. Should a Commercial Subscriber wish to allow more than one staff member/User to use the Services he or it should apply for such number of additional Subscription as may be required.
- Commercial Subscription is intended to allow Commercial Subscribers to use the Services for limited commercial purposes. Such purposes include professional and business presentations, video presentations, catalogues, brochures, promotional greeting cards and other materials all of which are NOT for license or resale.
- Notwithstanding the provisions of Section 7(ii) above but subject to the provisions of Section 7(iv)-(ix) (inclusive) and the provisions of Section 8(xvi) of these Terms below Commercial Subscribers may include footage from the Multimedia Library and other Content and otherwise use the Services to produce Derivative Works which they may sell or otherwise use for commercial purposes. It shall be a term of any such sale or use of Derivative Works that the Derivative Work may not be resold or re-used by a person to whom they are provided in any way whatever.
- Commercial Subscribers shall be entitled to remove the Binumi watermark from Multimedia Library footage included in Derivative Works.
- Commercial Subscribers shall be permitted to access high resolution HD video files included with the Multimedia Library.
- Commercial 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. For the avoidance of doubt sales shall be deemed to have been made to the mass market where total sales exceed 5,000 copies of any Derivative Work.
- An Extended Licence may be purchased on application to Binumi (provided always that Binumi shall be under no obligation to grant an Extended Licence which it may withhold or withdraw at any time at its discretion) in consideration of payment of Extended Licence Royalties by the Commercial Subscriber to Binumi. Where granted, an Extended Licence shall entitle the Commercial Subscriber purchasing the same:
- to make unlimited reproductions of Derivative Works
- to extend usage of Content to more than one person within that Subscriber's organisation
- to produce and sell up items of merchandise featuring Content. For these purposes merchandise shall include, without limitation: mugs, t-shirts, sweatshirts or other garments, games, toys, entertainment goods, framed pictures, mousepads, pens or any other item featuring Content
- Any Commercial Subscriber granted an Extended Licence agrees to pay an Extended Licence Royalty of $0.05 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 sold or licensed pursuant to a an Extended Licence. The Commercial Subscriber shall account to Binumi monthly with details of all sales and all Extended Licence Royalties due.
- Footage contained within Binumi’s Multimedia Library is freely available to use for use by all Subscribers for internal purposes. Commercial 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 or places featuring in such Derivative Works. Binumi gives no warranty of any kind that all required releases have been obtained. It shall be the responsibility of Commercial Subscribers 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 excludes all liability for any failure by a Commercial Subscriber to do so.
8. Prohibited Uses
In order to provide complete clarity as to what uses may not be made of Content the following uses are expressly prohibited and Subscribers may not:
- 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;
- 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);
- 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;
- use any of the Content as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo;
- 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;
- 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 libellous in nature, or that would be reasonably likely to bring Binumi or any person or property reflected in the Content into disrepute;
- 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;
- reverse engineer, decompile, or disassemble any part of such source code;
- remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Content;
- 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;
- 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;
- 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;
- use Content for any commercial, promotional, endorsement, advertising or merchandising use unless expressly otherwise permitted in these Terms;
- either individually or in combination with others, reproduce the Content, or an element of the Content, in excess of 5,000 times without obtaining an Extended Licence; or
- include the Content in any Derivative Work with a view to creating merchandise for sale without obtaining an Extended Licence.
- use footage from the Multimedia Library or any tool available on the Binumi Website for any commercial purpose after such Subscribers cease to be subscribers. For the avoidance of doubt such prohibition shall extend to the use of footage from the Multimedia Library or tools from the Binumi Website which a Subscriber may have passed to a third party - both during a period of subscription or after such subscription ends.
9. Proprietary Rights in Content
- The Services include video clips, graphics, photographs files, images, musical works, applications, or any other materials and other content of Binumi. This Content is protected by copyright, trademark, patent, trade secret and other laws, and, save as otherwise provided herein, Binumi owns and retains 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.
- The Services contain Third Party Content being Content of other Users and other licensors which Binumi is authorised to make available to Subscribers through the Binumi Site.
- Binumi hereby grants to you a limited non-exclusive, non-transferable, non-sublicensable, revocable worldwide right and licence to reproduce, display, manipulate, combine with other content and otherwise use the Content or any of it in connection with using 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 Your Own Content.
- The rights granted to you in Section 6 above are personal to you. For the avoidance of all doubt Content may not be sold as stand alone clips or included in any other media product or library for distribution or re-sale. Save for the limited licence to use the Content you shall not be entitled to nor may you claim any proprietary rights in the Content nor may any part of it be used as a trademark or service. If you provide any of the Content to a third person as part of your work product such person shall have no right to reuse the Content for any purpose other than a review of your work without themselves becoming a Subscriber.
- When you upload Your Own Content onto the Binumi Site, through or in connection with the Services, you continue to retain all such rights that you may have in Your Own Content, subject to the limited licence following. By uploading any of Your Own Content on the Binumi Site, through or in connection with the Services, you hereby grant to Binumi a limited licence to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute Your Own Content solely on, through or in connection with the Services, including through Linked Services and including, without limitation, distributing part or all of the Services and any of Your Own Content included therein, in any media formats and through any media channels, except that any of Your Own Content marked “private” will not be distributed by Binumi outside the Services and Linked Services. This limited licence does not grant Binumi the right to sell or otherwise distribute Your Own Content outside the Services or Linked Services. After you remove Your Own Content from the Services we will cease distribution as soon as practicable, and at such time when distribution ceases, the limited licence will terminate. If after we have distributed Your Own Content outside the Services, you change the privacy setting of Your Own Content to “private” we will cease distribution of such “private” Content outside of the Services as soon as practicable after you make the change. Notwithstanding the foregoing, you understand and agree that once Your Own 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 Content, and therefore it may continue to appear and be used indefinitely.
- The licence you grant to Binumi is non-exclusive (meaning you are free to license Your Own Content to anyone else in addition to Binumi), fully-paid and royalty-free (meaning that Binumi is not required to pay you or anyone else deriving rights from you for the use of Your Own Content that you upload onto the Services), 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).
- You represent and warrant that: (i) you own all and any of Your Own Content uploaded onto the Binumi Site by you, through or in connection with the Services, or that you otherwise have the right to grant the licence set forth in this Section 6, and (ii) the uploading of Your Own 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. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of the use of any of Your Own Content uploaded by you onto the Binumi Site and disseminated through the Services and/or Linked Services. You further agree to indemnify Binumi and hold it harmless from all and any liability we may incur by reason of your uploading Your Own Content and its subsequent distribution whether combined through our Content or with Content of any other User and whether distributed through Linked Services or otherwise.
- 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. You agree and acknowledge that Binumi may send messages including, but not limited to, notifications, special offers, promotions, commercial advertisements, and marketing materials, in connection with the Services. You can control what type of communications you receive from the Services by logging into your account and choosing the appropriate notifications settings.
- Binumi reserves the right to limit the storage capacity of Content that you upload on, through or in connection with the Services.
10. Content Posted
- Please be extremely careful with any of Your Own 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. 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 Subscribers (for instance, in their profiles) 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.
- Binumi may reject, refuse to post or delete any of Your Own Content for any reason, including, but not limited to, the fact that in the sole judgment of Binumi Your Own 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 the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of any User submitting any such Content.
- You are solely responsible for the Content that you 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 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. 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 the offending Content from the Binumi Site or otherwise restricting its use in connection with the Services, terminating the Subscription of such violators and/or reporting such Content or activities to relevant law enforcement authorities. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of Binumi:
- is patently offensive or promotes or otherwise incites racism, bigotry, hatred or physical harm of any kind against any group or individual;
- harasses or advocates harassment of another person;
- exploits people in a sexual or violent manner;
- contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
- solicits or is designed to solicit personal information from anyone under 18;
- publicly posts information that poses or creates a privacy or security risk to any person;
- constitutes or promotes information that is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
- 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;
- involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
- contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
- 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;
- solicits or is designed to solicit passwords or personal identifying information for commercial or unlawful purposes from other Users;
- involves commercial activities and/or sales without prior written consent from Binumi such as contests, sweepstakes, barter, advertising, or pyramid schemes;
- includes a photograph or video of another person that you have uploaded without that person's consent;
- uses sexually suggestive imagery or any unfair, misleading or deceptive Content intended to draw traffic to the profile;
- violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
- 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, sendingof viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
- 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.;
- 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;
- 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;
- 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 Your Own Content which you legally upload onto the Binumi Site or which you use or display through or in connection with these Services;
- 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;
- covering or obscuring the safety features (e.g., report abuse button) on your personal profile page, or any page by any means;
- interfering with, disrupting, or creating an undue burden on the Services or the networks or services connected to the Services;
- 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);
- 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;
- selling or otherwise transferring your profile, your email address or URL;
- 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;
- 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;
- relaying email from a third party's mail servers without the permission of that third party;
- 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;
- 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;
- 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
- using the Services in a manner that is inconsistent with any and all Applicable Law.
12. Protecting Copyrights and Other Intellectual Property
Binumi respects the intellectual property of others, and we require that our Users do the same. You 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 you believe your 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: (a) 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; (b) 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); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) 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; (e) a statement by you, made under penalty of perjury, 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 (f) your physical or electronic signature.
For the avoidance of doubt, 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.
For the avoidance of doubt, 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
14. User Disputes
You are solely responsible for your interactions with other Binumi Users, third party developers or any other parties with whom you 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.
- Binumi has gone to considerable lengths to ensure that it has all necessary rights to make the Multimedia Library 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 infringes its rights Binumi reserves the right to require that a Subscriber 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.
- Binumi is not responsible for and makes no warranties, express or implied, as to the Third Party Contentor 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.
- 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.
- 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.
- 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 you access these third party sites and services, you do 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.
- Binumi is not responsible for the conduct, whether online or offline, of any User of the Services or any Linked Services.
- 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 or Subscriber communication.
- 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.
- 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.
- Under no circumstances shall Binumi be responsible for any loss or damage, including, without limitation, personal injury or death (save in the latter cases where injury or death is due to the negligence on the part of Binumi), 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.
- 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 13 above Binumi shall not in any circumstances be liable to you or any third party for any indirect, consequential, exemplary, incidental, special or punitive damages, including, without limitation, loss of profit arising from your 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, Binumi's liability to you for any cause whatsoever and regardless of the form of the action, will at all times be limited to the Charges paid by you to Binumi for the Services during the term of your Subscription.
Every agreement entered into by a Subscriber 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. You and Binumi each agree to submit to the exclusive jurisdiction of the English courts to resolve any dispute arising out of these Terms or the use of Services.
You 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, made by any third party due to or arising out of your use of the Services in violation of these Terms and/or arising from a breach of these Terms and/or any breach of your representations and warranties set forth in these Terms and/or any of Your Own Content that you post on, through or in connection with the Services.
- You accept these Terms each time you use the Binumi Site or any of the Services and these Terms are further affirmed by you becoming a Subscriber. Your agreement with Binumi will, at a minimum, always include these Terms.
- Your access and use of certain Services may require you to accept additional terms and conditions applicable to such Services, in addition to these Terms, and may require you to download Software or Content.
- 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.
- The Section titles in these Terms are for convenience only and have no legal or contractual effect.
- Binumi is a trademark of BinumiAgency (Hong Kong) Limited.
- This Agreement operates to the fullest extent permissible by law.
- If any provision of these Terms is determined to be unlawful, void or unenforceable, that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
The initially capitalised expressions set out in this Annex shall where used in the above Terms, have the meanings ascribed to them as set out below:
means all applicable laws, rules and regulations applying to your use of the Services;
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 website through which the Services may be accessed at the url: www.binumi.com.
mean 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 the same may be amended from time to time.
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.
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 Subscribers relating to their use or prospective use of the Services.
mean any work product produced using 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 Education Subscription.
means the agreement entered into with an Education Subscriber pursuant to which that Subscriber authorises named Users to access the Services via individual or collective passwords.
means a licence granted to a Commercial Subscriber pursuant to Section 7(vii) of these Terms where such Commercial Subscriber wishes to sell or otherwise commercialise in excess of 5,000 copies of a Derivative Work in any media or to create and sell merchandise featuring Content.
Extended Licence Royalty:
means a royalty of $0.05 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 commercialised pursuant to an Extended Licence.
includes the applications, widgets, websites or mobile, desktop or other services which are linked with your Binumi account.
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 Subscriber (or in the case of Education Subscriptions with multiple Users who do not elect to use a common Password, each User) to access and use the Services.
means any Subscriber who is not a Commercial Subscriber or a Subscriber pursuant to an Education Subscription and who is categorised as a Personal Subscriber in their Subscription application and who does not pay additional Charges for the privileges of Commercial 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 the policy allowing Subscribers to claim refunds of Charges in certain limited circumstances specified in Condition 6.
include a licence to use the Multimedia Library, on-line tutorials giving Subscribers the opportunity to learn essential filmmaking techniques, creative discussion groups, on-line introductions, mash-up and idea sharing, event organisation, competitions and other features, content, and applications offered through the Binumi Site from time to time.
means any person subscribing to use the Services whether a Personal Subscriber, a Commercial 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 to Binumi by a Subscriber.
mean these terms.
Third Party Content:
means any Content the rights in which belong to third parties but which Binumi is entitled to licence for use by Subscribers 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 under the terms of an Enterprise Agreement.
means any Subscriber or User to whom any part of these Terms may apply.
Your Own Content:
means any content owned or controlled by you and uploaded or created by you for use in conjunction with the Services.