Terms of Use

These Terms of Service (“TOS”) govern the use by all users (each a “User” or “you”) of the Service (as defined below) provided by Cinely, Inc. (“Cinely”, “us”, and “we”). Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the www.cinely.com (“Site”) in connection with such features. All such additional terms, guidelines, and rules, and our Privacy Policy at www.cinely.com/privacy are incorporated by reference into this TOS; to the extent such terms, guidelines, and rules conflict with this TOS, the additional terms, guidelines, and rules shall govern. We reserve the right, at our sole discretion, to change, modify, add, or delete portions of this TOS at any time. If we do this, we will indicate at the top of this page the date this TOS was last revised. Your continued use of the Service after any such changes constitutes your acceptance of the updated TOS. It is your responsibility to regularly check to determine if there have been changes to this TOS and to review such changes.

THIS TOS SETS FORTH THE LEGALLY BINDING TERMS FOR YOUR USE OF THE SERVICES AND SITE. BY ACCESSING OR USING THE SERVICES OR SITE, YOU ARE ACCEPTING THIS TOS AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS TOS. YOU MAY NOT ACCESS OR USE THE SERVICES IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS TOS, DO NOT ACCESS AND/OR USE THE SERVICES OR SITE.

1. SERVICE.

1.1 General. Cinely operates, using proprietary software, technology, and content, an online marketplace (the “Service”) at www.cinely.com to connect clients who wish to have Commissioned Works produced (“Clients”) and producers who are willing to produce the Commissioned Works for Clients (“Producers”), and to facilitate the transactions between Clients and Producers. The Service, among other things, enables Clients to hold Contests, issue RFPs, and purchase and pay for the Commissioned Works, and enables Producers to compete in Contests, participate in the RFP process, deliver Commissioned Works to Clients, and receive payments. As used herein, Commissioned Work” means an audiovisual work produced by a Producer and submitted via the Service, for the benefit of Client, based upon documents or files which contains the expression of Client’s ideas, specifications, and directions for the Commissioned Work (“Creative Brief”). To the extent you are a Client, the provisions in this TOS regarding Clients and Users apply to you. To the extent you are a Producer, the provisions in this TOS regarding Producers and Users apply to you.

1.2 Accounts. In order to use the Service, User must register for an account with Cinely (“Account”) and provide certain information as prompted by the Site registration form. User represents and warrants that: (i) all required registration information it submits is truthful and accurate; and (ii) User will maintain the accuracy of such information. User may modify or delete its Account at any time, for any reason; deletion or modification of an Account, however, does not terminate any on-going obligations of User. User is responsible for maintaining the confidentiality of its Account login information and is fully responsible for all activities that occur under its Account. User agrees to immediately notify Cinely of any unauthorized use, or suspected unauthorized use of its Account or any other breach of security. Cinely cannot and will not be liable for any loss or damage arising from User’s failure to comply with the above requirements. User may not have more than one Account.

2. ENGAGEMENT. Client may engage Producers to produce Commissioned Works in two ways: (i) via a contest (“Contest”) in which participating Producers submit Commissioned Works based on Client’s Creative Briefs and Client selects the winning Commissioned Work; or (ii) via an RFP process in which Client issues a request for proposal (“RFP”), and Producers submit proposals (“Proposals”) in response to the RFP, and Client selects the winning Producer who will produce the Commissioned Work. A Contest or an RFP may be by invite-only (invitees to be selected in Cinely’s sole discretion) or open to all Producers who are Cinely Users. Client will pay Producers for the Commissioned Work selected by Client in a Contest or created by Producer pursuant to the RFP process as further set forth below. Client is under no obligation to use or otherwise publish the Commissioned Work commissioned by Client. Client may specify in the Contest or RFP that more than one winning Commissioned Work or Producers will be selected.

2.1 Contest. To hold a Contest, Client submits a Creative Brief via the Site and follows the instructions on the Site. Producers may enter a Contest by submitting Commissioned Works in the format specified by following the instructions on the Site based on the Creative Brief. Client and Cinely will select a winning Commissioned Work(s) by the deadline specified by Cinely. Client’s payment obligation applies even if Client does not select any winning Commissioned Work, provided that at least three Producers enter the content. If fewer than three (3) Producers enter a Contest and Client does not select a winning Commissioned Work, Client will be entitled to a refund but will have no rights to use any of the submitted Commissioned Works. For the avoidance of doubt, Client has no right or license to use any Commissioned Works other than the selected (via a Contest) or accepted (via an RFP) Commissioned Work(s) (“Purchased Commissioned Work(s)”). Client will specify the prize (including but not limited to the fee for the Purchased Commissioned Work(s) and any other compensation and/or cost reimbursement) it is willing to pay for the Purchased Commissioned Work(s). Cinely may accept or reject Client’s Contest based on the prize or the Creative Brief, or for any other reasons.

(a) Participating Producers will comply with the specifications for the Commissioned Work specified by Client and Cinely, including but not limited to the following:

(i) The length and other requirements of the Commissioned Work must comply with the Commissioned Work specifications.

(ii) The Commissioned Work must be received by Cinely no later than 11:59 p.m. United States Eastern Standard Time on the last day specified for the Contest on the Site.

(iii) Producer’s participation may be void where prohibited, and Cinely may terminate Producer’s participation in the Contest if Cinely deems Producer’s work product or activities on the Site are inappropriate.

(iv) The specifications set forth in this Section 2.1(a) and Creative Brief are subject to change and Cinely will use its reasonable efforts to notify the Producers of any assignment updates or changes by posting updates on the Site during the duration of the Contest.

(b) Commissioned Work Submission. In order to submit a Commissioned Work, Producer must follow the instructions set forth on the Site, which include but are not limited to: (i) obtaining and retaining all signed Releases for talent and third party content used in the Commissioned Work; and (ii) completing all other forms and other documentation requested by Cinely and/or Client. Producer acknowledges and agrees that none of the materials and/or Commissioned Work that Producer submits will be returned to Producer, and that Producer is responsible for keeping and preserving all original materials submitted, including but not limited to all materials, source files, original footage, documents, recordings, and signed Releases (as defined in Section 3.2), all of which Producer will immediately deliver upon Cinely’s request.

(c) Commissioned Work Selection.

(i) Client will review each Commissioned Work and select winning Commissioned Work(s).

(ii) Upon selection by Client of the winning Commissioned Work(s), the winning Producer will be notified of Client’s selection via the Site.

(iii) Producer will, within five (5) days of receiving a request, supply to Client written, fully executed copies of: (1) all Releases; (2) a confirmation of assignment to Client of all right, title, and interest in and to the Purchased Commissioned Work(s).

(iv) Producer will, within five (5) days of receiving such notification, supply to Cinely (1) payment deposit information as requested by Cinely (e.g., Producer’s name, address, tax ID number (EIN or SSN), and other information necessary to comply with any legal obligations related to payment); (2) a completed and executed W-9 form; and (3) any other requested documentation in a form acceptable to Cinely.

(v) Upon Producer’s delivery of the Commissioned Work, Cinely will pay Producer the Producer Fee (as defined in Section 3.1).

(d) Other Obligations and Acknowledgments.

(i) Producer acknowledges that: (1) the Commissioned Work may ultimately not be selected for commercial use or any use by Client; (2) no Producer Fee will be paid unless the Commissioned Work is selected by and delivered to Client; and (3) Producer is not entitled to any consultation or approval rights over the use of the Purchased Commissioned Work, Producer’s name, portrait, appearance, likeness or biographical information, or exercise of any other rights granted to Client under this TOS.

(iii) The Producer Fee is the sole and exclusive payment (if any) that Producer will receive for any and all use of the Purchased Commissioned Work and otherwise in connection with this TOS, including but not limited to all rights granted under it.

(iv) Producer is responsible for all and any Taxes (as defined below) related to the Purchased Work and Producer Fee. Producer is responsible for any and all third party costs, expenses, and charges of any kind with respect to Producer’s production of the Commissioned Work and fulfillment of all of Producer’s obligations under this TOS.

(v) Client may not (i) run a Contest if Client is tendering the creation of the same video through a service other than the Service; (ii) allow or request Producers to submit Commissioned Works to Client via any means other than via the Service; (iii) collude with Producers in relation to the awarding of a winner in a Contest; (iv) award the winning Producer outside the Service; or (v) cancel any Contest for the purpose of contracting separately with a Producer which Client meets through the Service and which results in Client avoiding paying Cinely any Client Payment (as defined in Section 3.1) or any fees and charges of Cinely.

(e) Contest Cancelation. Client may cancel an existing Contest, for whatever reason or no reason, before two or more Commissioned Works have been submitted to the Contest, or before half of the Contest duration has elapsed. In such event, Client will be entitled to a full refund. A contest may also be cancelled by Cinely, at its sole discretion, for whatever reason. Producer agrees that Client and Cinely may cancel an existing Contest as set forth in this Section without any liability to Producer (including but not limited to any payment obligation).

2.2. RFP. Client may issue an RFP on the Site to select one or more Producers to produce its Commissioned Work. To solicit Proposals, Client must post a Creative Brief and contractual terms relevant to the project of creating the Commissioned Work, and follow the instructions for RFP on the Site. Producers may participate in the RFP process by submitting a Proposal and following the instructions on the Site. A Proposal must meet the RFP requirements and any other additional Cinely requirements. Cinely and/or Client may reject a Proposal for any reason or no reason. Client will review the Proposal and select the winning Proposal, and the Producer(s) with the winning Proposal(s) will be notified via the Site.

(a) Acceptance. Upon Client’s selection of a Proposal, Client and Producer will enter into a Contract for Producer to create a Commissioned Work. Client agrees to purchase, and Producer agrees to produce and deliver, the Commissioned Work in accordance with the following agreements (collectively, the “Contract”), and in the case of any conflicts, to be resolved in the following order of precedence: (1) additional rules and guidelines for specific portion of Service; (2) this TOS; and (3) any other contractual provisions accepted by both Client and Producer and uploaded to the Site, to the extent not inconsistent with this TOS. Client and Producer may only modify the provisions of this TOS with written consent by Cinely. Any part of the Contract that conflicts with or modifies this TOS shall be null and void while the other parts of the Contract shall remain valid and binding.

(b) Responsibilities and Performance. Client is responsible for managing, inspecting, accepting and paying for the Commissioned Work in accordance with the Contract in a timely and professional manner. Producer is responsible for the performance and quality of the Commissioned Work in accordance with the Contract in a timely and professional manner, consistent with industry practice, at a location, place and time agreed upon by the parties to the Contract. The manner and means that Producer chooses to perform are in Producer’s sole discretion and control. Producer agrees to provide its own equipment, tools, and other materials for the project at its own expense. Client and Producer each covenant and agree to act with good faith and fair dealing in performance of the Contract.

(c) Duration of Service. The duration of performance under the Contract commences and terminates on the dates specified therein, unless both Client and Producer otherwise agree through a change request on the Site.

  1. PAYMENT & FEES.

    1. Payment and Delivery. Upon Cinely’s acceptance of Client’s Contest or RFP to be carried out via the Service, Client will immediately deposit the Client Payment into Cinely’s account, to be held by Cinely to pay the Producer(s) of the winning Commissioned Work(s) or Proposal(s) (upon completion of the Contract), and to pay Cinely the Service Fee (as defined in Section 3.4). The “Client Payment” includes the fees to the Producers, any and all costs and expenses to be reimbursed to Producers, fair market value of any non-cash compensation to Producer, and Cinely’s Service Fee. Upon Producer’s delivery of the selected or accepted Commissioned Work to the Client, Cinely will pay the Producer(s) the “Producer Fee” (subject to receiving Client Payment from the Client) equal to Client Payment, minus the Service Fee and other charges imposed by Cinely. Producer will upload the Purchased Commissioned Work (selected via a Contest or accepted via an RFP on the Site in a format specified by Cinely for retrieval by Client.

    2. Refunds. Refunds will be paid to Client using the same payment method Client used to remit the Client Payment to Cinely, or via any other method specified by Cinely from time to time. If a refund is paid to Client or a credit card charge back occurs, Client will initially receive the amount of the Client Payment less the Producer Fee and will receive the Producer Fee only once the Producer Fee is reimbursed by Producer to Cinely, if the Producer Fee has been paid by Cinely to Producer prior to refund. Cinely may refund Client for the following reasons in addition to reasons stated in Section 2.1: (i) the Purchased Commissioned Work is Defective (as defined below); (ii) Cinely is required by law or considers that it is required by law to do so; (iii) Cinely determines that issuing a refund to the Client will avoid any dispute or increased costs to Cinely; (iv) Cinely issues the refund to the Client in accordance with any refund policy specified by Cinely from time to time; (v) the order placed (or request made) by the Client is found to be fraudulent; (vi) the Client placed a duplicate order (or request) in error; or (vii) in Cinely’s sole opinion, Cinely considers that it is likely that the refund is necessary to avoid a credit card charge back. Cinely’s determination as to whether a refund is required is final and conclusive and may not be challenged by Producer. A Commissioned Work will be deemed to be “Defective” if: (i) Client informs Cinely that the Commissioned Work does not meet the Creative Brief or the terms of the Contract (if any); (ii) the Commissioned Work is subject to a third party claim that it infringes/misappropriates such third party’s IPR, that Cinely deems (in its sole discretion) is not frivolous; (iii) Cinely deems (in its sole discretion) that the Commissioned Work is defective; or (iv) Producer has not obtained all necessary Releases for the Commissioned Work. “IPR” means all copyrights, trademarks, trade dress, trade secrets, database rights, moral rights, mask work rights, patents and other intellectual property rights, industrial rights, and proprietary rights arising under the laws of any jurisdiction.Releases” means all releases, rights, and permissions (including, but not limited to, script, speech, talent, photographic, location, and/or music (musical copyright and sound recording) releases vetted by Producers and necessary for Producers to vest ownership of all right, title, and interest in and to the Purchased Commissioned Work to Client, and to permit any and all use of the Purchased Commissioned Work by Client (worldwide, for the full term of copyright, and for any purpose, including but not limited to commercial advertising) by Client as described in this TOS, without infringing or otherwise violating any third party right and without incurring any further obligation to anyone (including but not limited to any payment), with Producer bearing sole responsibility for the form and adequacy of the releases, assignments, and permissions, notwithstanding any sample documents provided by Cinely or Client for purposes of illustration or convenience.

    3. General Payment. All payment will be in US dollars. The fees and payments are inclusive of Taxes, unless otherwise agreed upon by Client and Cinely. Producer agrees that it is responsible for the payment of all Taxes which Producer may be liable for in any jurisdiction arising from the sale or purchase of the Commissioned Work via the Service. Cinely is not responsible for collecting, reporting, paying, or remitting to you any such Taxes. “Taxes” means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect to a transaction contemplated by this TOS. Any amount that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

3.4 Service Fee. Cinely deducts the percentage of the Client Payment as announced on the Site or otherwise mutually agreed by Cinely and Client (“Service Fee”), from the Client Payment at the same time payment is made to the Producer, which Service Fee will be retained by Cinely in consideration of the Service provided by Cinely hereunder.

3.5 Paying through the Service.

(a) Clients. By visiting or using the Service, Client agrees to use Cinely to make all payments to Producers through the Site, so that Cinely can collect its Service Fee. Client agrees that Cinely earns its Service Fee on all payments made to a Producer in the first twenty-four (24) months after a Commissioned Work is selected (via a Contest) or requested (via an RFP), regardless of whether Client makes the payments through Cinely or not. Client agrees not to take any action directly or indirectly to circumvent these fees. Client agrees to notify Cinely immediately if Producer solicits payment from Client outside the Site.

(b) Producers. By visiting or using the Site, or by communicating with Clients identified through the Site, Producer agrees to use the Service to receive all payments from Clients. Producer acknowledges and agrees that Cinely earns its Service Fee on all payments received from a Client in the first twenty-four (24) months after a Commissioned Work is selected (via a Contest) or requested (via an RFP), regardless of whether Producer receives the payments through Cinely or not. Producer agrees not to take any action directly or indirectly to circumvent these fees. Producer agrees to notify Cinely immediately if Client seeks to pay Producer outside the Service.

(c) Opt-Out. Notwithstanding the foregoing, if Client pays a fee to be determined by Cinely (“Opt-Out Fee”) and Cinely notifies both Client and Producer that the opt-out option has been exercised, then the Client has the right to pay that Producer outside the Site.

  1. LICENSE, ASSIGNMENT & DMCA.

    1. Client & Cinely Rights.

(a) Client’s Ownership of Commissioned Work. Producer hereby agrees that Client has specially ordered and commissioned Producer to produce the Commissioned Work and any work as a “work made for hire” as that term is used in the US Copyright Act (of 1976, as amended), except for any perpetual licenses (e.g., music, etc.) used in the creation of the Commissioned Work, and if applicable, the Brazillian Copyright Act of 1998, and therefore Client is the exclusive owner and author throughout the world for the full term of copyright and is free from any restriction or obligation whatsoever under the Visual Artist Rights Act or, if applicable, California Civil Code section 987; Massachusetts Gen. Laws Ch. 231, §85S (the Massachusetts Art Preservation Act), or other similar laws, however denominated, throughout the world. As of the execution of this TOS or the creation of the Commissioned Work (whichever is earlier) and without further consideration, Producer hereby irrevocably assigns to Client all worldwide right, title, and interest in the Commissioned Work, including all U.S. and foreign copyrights (and extensions of them), whether under statute, treaty, convention, proclamation or the like); all rights to apply for or obtain any registrations for copyright in the Commissioned Work, and all other IPR or related rights of any kind. Producer hereby waives all moral rights or similar rights that Producer may have in the Commissioned Work, to the extent those rights can be waived. To the extent any rights under the Releases vest in Producer under any applicable law, Producer hereby irrevocably and exclusively assigns all of those rights to Client, and if applicable, Cinely, for the full duration of those rights in all jurisdictions in the world.

(b) Further Assurances. As a condition to Producer’s right to receive payment of the Producer Fee for the Purchased Commissioned Work, Cinely may require Producer to execute a confirmation of assignment and such other documents reasonably required by Cinely or Client to secure and enforce the rights granted to Client under this TOS (“Additional Documents”). Producer shall execute and deliver such Additional Documents to irrevocably and perpetually vest in Client all right, title, and interest in and to the Purchased Commissioned Work, including without limitation, all licenses and related work. To the extent any portion or aspect of the Purchased Commissioned Work cannot be assigned under the applicable law, then of any jurisdiction, Producer hereby grants to Client an unlimited, worldwide, perpetual, irrevocable, fully paid-up license to use, copy, modify, import/, export, create derivative works from, and otherwise exploit the Purchased Commissioned Work for any purpose, commercial or otherwise. Producer acknowledge that Client may assign any or all of its rights in the Purchased Commissioned Work (or other rights under this TOS) to one or more third parties, and in such Producer will extend Producer’s obligations under this TOS to such assignee.

4.2 Producer Rights.

(a) Limited Grant of Rights. Subject to the terms of this TOS, Client grants Producer a limited, non-exclusive, non-transferable, non-assignable, royalty-free, and revocable license to use, reproduce, modify, and create derivative works of Client’s proprietary content made available to Producer in connection with a Contest or RFP, including but not limited to all content contained in the Creative Brief, trademarks, taglines, slogans, labels, trade dress, brand guidelines, logos, images, graphics, music, sound bites, video clips, digital files, works of authorship, and other material, whether protected by copyright, trademark, or any other applicable law (collectively, “Client Content”) solely for the purpose of producing the Commissioned Work via the Service. Producer is hereby permitted, during the duration of the Contest or RFP (“Work Period”), to download Client Content associated with the Contest or RFP from the Site for use as expressly permitted above. Producer acknowledges and agrees that this TOS accords Producer no rights in and to the Client Content, except as expressly stated in this TOS.

(b) Restrictions. Producer shall not display, distribute, reproduce, create derivative works from or otherwise use the Client Content or the Commissioned Work, or any portion thereof, on any other project or for Producer’s benefit or the benefit of any third party except as expressly permitted by written agreement with Client. PRODUCER WILL NOT POST OR DISPLAY THE VIDEO ON ANY WEBSITE (INCLUDING WITHOUT LIMITATION FACEBOOK.COM, YOUTUBE.COM, OR ANY SIMILAR WEBSITES, OR PROUCER’S OWN WEBSITE) OR ON ANY OTHER MEDIUM. Producer must immediately cease all use of Client Content and return or destroy all copies of it (as Client may choose to specify in its discretion) at the end of the engagement and upon delivery of the Commissioned Work. Producer shall comply with Client's brand guidelines, if any, in connection with Producer’s use of Client’s trademarks, trade dress, and other Client Content, none of which Producer may use except by express, prior, or written agreement with Client. At the conclusion of the Work Period, and if Producer’s Commissioned Work is selected, Producer must deliver to Cinely on behalf of Client any original Commissioned Work footage in Producer’s possession, that contains any Client Content. At no time may Producer disparage or make any action or statement that harms Client’s reputation or business (or the products or services described in the Creative Brief) based on any matter related to the Contest, RFP, Creative Brief, or Commissioned Work.

4.3 User Content.

(a) Users are the owners of and are solely responsible for all information and content that a User submits to, or uses with, the Service or Site (“User Content”), including but not limited to Creative Briefs, Contests, RFPs, Commissioned Work, video/visual/audio work other than Commissioned Work, Proposals, reviews, and testimonials, and to grant sublicenses of the foregoing. Users assumes all risks associated with use of User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of User Content that makes User or any third party personally identifiable. User hereby represents and warrants that User Content does not violate the Acceptable Use Policy (as defined Section 8). User may not state or imply that User Content is in any way provided, sponsored or endorsed by Cinely. Because User alone is responsible for User Content (and not Cinely), User may be exposed to liability if, for example, User Content violates the Acceptable Use Policy. Cinely is not obligated to remove any Contests, RFPs, or other User Content from the Site unless required by applicable law. Cinely is not obligated to backup any User Content and User Content may be deleted at any time. Users are solely responsible for creating backup copies of User Content. User hereby grants, and User represents and warrants that User has the right to grant, to Cinely an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use any and all User Content solely in connection with the Service, with a right to sublicense. User agrees to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to User Content. For the avoidance of doubt, Producer’s license or assignment of the Commissioned Work to the Client is set forth in Sections 4.1 and 4.3(b) and is not governed by the foregoing license.

(b) Right of Publicity. Producer hereby grants Cinely, Client, and each of Cinely’s and Client’s respective affiliates, licensees, successors, and assigns (collectively “Affiliates”) the exclusive worldwide, perpetual, irrevocable, assignable, sub-licensable, royalty-free right and license to reproduce, use, digitize, distribute, publicly display, publicly perform, and create derivative works from and otherwise exploit Producer’s name, portrait, appearance, likeness, and biographical information, and any other identifying attributes, in whole or in part, as the Affiliates may deem appropriate in connection with the Commissioned Work, in any and all media, now or hereafter known, for all purposes (marketing, commercial, non-commercial, and otherwise), including without limitation print, radio, internet, film, on-line systems, videocassettes, DVDs, interactive devices, television broadcast, digital broadcast, and in the advertising, publicity, commercial tie-ins, merchandising, or other promotion or use of the Commissioned Work.

(c) Right to Display Commissioned Works. Producer and Client hereby grant, and Producer and Client represent and warrant that they have the right to grant, to Cinely an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide license to publicly display and perform the Commissioned Works and the Purchased Commissioned Works on the Site or in connection with the Service.

4.4 Site.

(a) License. Subject to the terms of this TOS, Cinely grants User a non-transferable, non-exclusive, license to use the Service and Site and for any User’s internal business purposes. For the avoidance of doubt, Producer’s license or assignment of the Purchased Commissioned Work to the Client is set forth in Sections 4.1 and is not governed by the foregoing license.

(b) Certain Restrictions. The rights granted to User in this TOS are subject to the following restrictions: (i) User shall not license, sell, rent, lease, transfer, assign, distribute, or otherwise commercially exploit the Service or Site; (ii) User shall not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Service or Site; (iii) User shall not access the Service or Site in order to build or promote a similar or competitive service; and (iv) except as expressly stated herein, no part of the Service or Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Service or Site shall be subject to the terms of this TOS. All copyright and other proprietary notices on any Service or Site must be retained on all copies thereof. Cinely reserves the right, at any time, to modify, suspend, or discontinue the Service or Site or any part thereof with or without notice. User agrees that Cinely will not be liable to any User or third party for any modification, suspension, or discontinuance of the Service or Site or any part thereof. User acknowledges and agrees that Cinely will have no obligation to provide any support or maintenance in connection with the Service or Site.

(c) Feedback. If User provides Cinely any feedback or suggestions regarding the Service or Site (“Feedback”), User hereby assign to Cinely all rights in the Feedback and agree that Cinely shall have the right to use such Feedback and related information in any manner it deems appropriate. Cinely will treat any Feedback provided as non-confidential and non-proprietary. User agrees not to submit to Cinely any information or ideas that User considers to be confidential or proprietary

(d) Ownership. User acknowledges that all the IPR in the Service or Site (excluding User Content) are owned by Cinely or Cinely’s licensors. This provision of the Service or Site does not transfer to User or any third party any rights, title, or interest in or to such IPR. Cinely and its suppliers reserve all rights not granted in this TOS.

4.5 DMCA.

Cinely operates the Service in compliance with 17 U.S.C. §512 and the Digital Millennium Copyright Act (“DMCA”). It is our policy to respond to any infringement notices and take appropriate actions under the DMCA and other applicable intellectual property laws. It is the policy of Cinely to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the DMCA. The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing the designated agent of an alleged copyright infringement, the complainant must do the following:

  1. Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a list of the works on that site;

  2. Describe the material that is claimed to be infringing and provide sufficient information to permit Cinely, to locate that material;

  3. Provide your contact information, including an address, telephone number, and, if available, an email address;

  4. Certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner's agent, or law;

  5. Certify that the information that you have provided Cinely is accurate. The complainant should attest under penalty of perjury that the complainant is authorized to enforce the copyrights that have allegedly have been infringed; and

  6. Include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner.

Before the complainant alleges an infringement, complainant should consult copyright materials to confirm that the use is, in fact, infringing. The United States Copyright Office provides basic information, online, at http://www.copyright.gov/circs/circ01.pdf, which can assist one in determining whether an exception or defense, such as fair use, may apply to the use of your copyrighted work.

Cinely expects all of the Users of its Service and Site to comply with applicable copyright laws. However, if Cinely is notified of a claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond appropriately, which may include removing or disabling access to the material that is claimed to be infringing. Cinely will follow the procedures outlined in the DMCA with regard to appropriate notifications of the User and the complaining party, acceptance of counter notifications, and, where indicated, "putback" of the alleged infringing material. Refer to the United States Copyright Office for the provisions of the DMCA at http://www.loc.gov/copyright/legislation/dmca.pdf.

Where it has been clearly established that a Cinely User is a repeat offender, Cinely may, in its sole discretion, terminate that User’s Account. Pursuant to the DMCA, Cinely has designated an agent to receive notification of alleged copyright infringement occurring on web pages or computer servers. If you believe that your copyrighted work is being infringed on the Site, please notify our designated agent at: info@cinely.com.

  1. REPRESENTATIONS & WARRANTIES.

    1. Producer represents and warrants that:

(a) The Releases and all other information that Producer supplies to Cinely are true, correct, and accurate in all respects and Producer has used its best efforts in obtaining the permission and Release from the music and sound recording copyright owners of the music contained in the Commissioned Work pursuant to the terms of the Release;

(b) Producer is the exclusive producer of the Commissioned Work. Producer owns all necessary rights, title, licenses, permissions, and approvals necessary to grant the rights described in this TOS, or else has obtained all necessary, required, and fully executed Releases before or during the production and in no event later than delivery of the Commissioned Work, and Producer has not transferred, assigned, licensed or otherwise encumbered any rights in or to the Commissioned Work to any other person or entity;

(c) Producer’s performance of (and fulfillment of all obligations under) this TOS does not violate any agreement or other obligation to a third party (including but not limited to any employment relationship);

(d) The Commissioned Work: (i) is original and no portion of the Commissioned Work has previously been published or used by any third party; (ii) is factually accurate to the extent the Commissioned Work purports to represent facts; (iii) is an honest attempt at advertising; (iv) does not contain gang signs or symbols; (v) does not contain any unlawful, obscene, scandalous, or inappropriate picture, gesture, statement, language, material, or any pornographic material of any kind; (vi) does not contain material inappropriate for certain audiences due to their age; and (vii) does not contain any information or instruction that might be injurious to any person’s physical well being;

(e) The Commissioned Work and any encoding, storage, transmission, distribution, reproduction, public display, public performance, reproduction, creation of derivative works from, and use (including advertising, commercial, and noncommercial use) of the Commissioned Work anywhere in the world will not, infringe any third party IPR; defame or violate the privacy, publicity, personal, or other rights of any person or entity; constitute any actionable form of false advertising or similar violation; violate any obligation or understanding of confidentiality or nondisclosure; or violate any applicable law or regulation;

(f) To the extent that the Commissioned Work relates to advertising, marketing, or promotion . all testimonials and endorsements contained in the Commissioned Work represent the actual, honest opinions of actual users of Client’s products or services, and the users have received no compensation for the testimonial, endorsement or appearance in the Commissioned Work;

(g) The Commissioned Work and Producer’s performance of this TOS are not subject to the requirements or obligations of any union, guild, or similar association;

(h) Producer has not been convicted of any felony or aggravated misdemeanor;

(i) Producer and all of its subcontractors are legally authorized to perform services in the jurisdictions in which Producer’s services are to be provided, in accordance with all applicable laws;

(j) Producer is not on any list maintained by the United States Treasury Department's Office of Foreign Assets Control of persons or entities, or prohibited or restricted jurisdictions;

(k) All persons engaged to work on the Commissioned Work and/or appear in the Commissioned Work (including Producer): (i) have no payment claims or union rights against Producer or Affiliates; (ii) have no rights of consultation or approval; (iii) are not parties to and have not been engaged pursuant to any union or guild agreement; and (iv) have executed all necessary Releases;

(l) Producer shall not assert or file any action, complaint, cause of action, suit, proceeding, claim, or injury against the indemnified parties under any rights set forth above in Section 4.2(a) or on the basis of any claim of any proprietary right or interest in the Commissioned Work; and

5.2 Non-Solicitation. Client will not, individually or in concert with or through any other person or entity, directly or indirectly, on its own behalf or any others' behalf or through an agency, during the Work Period and for one (1) year after the Work Period ends, engage, hire, solicit or attempt to induce any Producer to perform any services, including audio-visual services for Client, including but not limited to, filming, editing, re-shooting or creating new or additional advertisements, outside the Service. However, notwithstanding this paragraph or anything else in this TOS, nothing contained herein shall preclude Producer from being hired by Client as a full time employee.

6. DISCLAIMERS & RELEASES.

6.1. Disclaimer. CINELY WILL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES DESCRIBED IN THIS TOS. CINELY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES OR SITE: (A) WILL MEET USER’S REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.

CINELY MAKES NO WARRANTIES REGARDING THE CONTESTS, RFPS, VIDEOS, PROPOSALS, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY PRODUCERS, CLIENTS, OR OTHER USERS. THE SERVICES AND SITE ARE PROVIDED “AS-IS” AND “AS AVAILABLE”. PRODUCERS SELL AND CLIENTS BUY VIDEOS AT THEIR OWN RISK. USERS SHOULD MAKE WHATEVER INVESTIGATION THAT USERS FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OTHER USER. USER INTERACTIONS WITH OTHER USERS ARE SOLELY BETWEEN THOSE USERS AND CINELY WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS. IF THERE IS A DISPUTE BETWEEN USERS, WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY.

6.2 Release. User hereby releases and forever discharges us (and our officers, employees, agents, successors, and assigns) from, and hereby waives and releases, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions or transactions with, or act or omission of, other Users, including Clients and Producers and Third Party Sites & Ads (as defined in Section 11). IF USER IS A CALIFORNIA RESIDENT, USER HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

7. LIMITED LIABILITY. IN NO EVENT SHALL WE (AND OUR SUPPLIERS) BE LIABLE FOR ANY LOST PROFIT OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS TOS OR USE OF, OR INABILITY TO USE, THE SERVICES OR SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICES AND SITE ARE AT USER’S OWN DISCRETION AND RISK, AND USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER’S COMPUTER SYSTEM OR LOSS OF DATA RESULTING THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR (AND OUR SUPPLIERS’) LIABILITY TO USER FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS TOS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) ONE THOUSAND U.S. DOLLARS ($1,000) OR (B) AMOUNTS USER HAS PAID CINELY IN THE PRIOR TWELVE (12) MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. USER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

8. ACCEPTABLE USE POLICY. The following sets forth Cinely’s “Acceptable Use Policy”:

8.1 Privacy. User agrees to only use the personal information of other Users made available only for the purposes of interacting with such Users in relation to the Service. User must not use any personal information for any other purpose, including for marketing purposes. User represents and warrants that User will comply with applicable privacy laws and data protection laws (including, without limitation, the Australian Privacy Act 1988 (Cth)) in relation to the storage, use, and transfer of personal information.

8.2 Content. User agrees not to use the Service or Site with any User Content or to provide any products or services that (i) violates any third party IPR; (ii) is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive (e.g., material that promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual) or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; or (iii) is in violation of any laws, or obligations or restrictions imposed by any third party.

8.3 Use Restrictions. User agrees not to use the Service or Site to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or Site or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service or Site, other computer systems or networks connected to or used together with the Service or Site, through password mining or other means; (vi) harass or interfere with another User’s use and enjoyment of the Service or Site; (vii) introduce software or automated agents or scripts to the Service or Site so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service or Site; (viii) impersonate any person or entity or falsify or misrepresent itself or its affiliation with any person or entity; or (ix) display, mirror, or frame the Site.

8.4 Other Guidelines/Policies. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against User in our sole discretion (including removing or modifying User Content, terminating an Account, and/or reporting Users to law enforcement authorities) if any User violates the Acceptable Use Policy or any other provision of this TOS or otherwise create liability for us or any other person.

9. INDEMNITY. User agrees to indemnify and hold Cinely (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (i) use of the Service or Site; (ii) User Content (including but not limited to any Contest, RFP, Commissioned Work, and Proposal); (iii) interaction with any other User; or (iv) violation of this TOS or any applicable laws. Cinely reserves the right, at User’s expense, to assume the exclusive defense and control of any matter for which Users are required to indemnify us and User agrees to cooperate with our defense of these claims. User agrees not to settle any matter without the prior written consent of Cinely. Cinely will use reasonable efforts to notify User of any such claim, action or proceeding upon becoming aware of it.

10. CONFIDENTIALITY & NON-DISCLOSURE. “Confidential Information” means any non-public information disclosed by a User (“Disclosing Party”) to a recipient User (“Receiving Party”), through the Service. Confidential Information may also include information disclosed by third parties. Receiving Party agrees not to use Confidential Information for any purpose except that which is specified by the Contest or RFP. Receiving Party will not disclose Confidential Information to any third parties. Receiving Party may only disclose Confidential Information to those employees who have a need to know and who are bound by a written agreement to retain the confidentiality under provisions at least as restrictive as this TOS. Use of the Confidential Information by Receiving Party is limited to the performance of obligations and exercise of rights under this TOS. In the event Receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, Receiving Party will promptly notify Disclosing Party and provide all reasonable assistance to allow intervention in response to such order. If a protective order or other suitable remedy is not obtained, Receiving Party shall provide only that portion of the Confidential Information so legally required to be disclosed and shall maintain the confidentiality of such Confidential Information under this TOS for all other purposes. Receiving Party will maintain the Confidential Information with at least the same degree of care it uses to protect its own proprietary information, but no less than reasonable care under the circumstances.

11. THIRD PARTY SITES & ADS. The Site might contain links to third party websites, services, and advertisements for third parties (collectively, “Third Party Sites & Ads”). Such Third Party Sites & Ads are not under the control of Cinely and Cinely is not responsible for any Third Party Sites & Ads. Cinely provides these Third Party Sites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third Party Sites & Ads. User uses all Third Party Sites & Ads at User’s own risk. When User links to a Third Party Site & Ad, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. User should make whatever investigation necessary or appropriate before proceeding with any transaction in connection with such Third Party Sites & Ads.

12. TERM & TERMINATION. Subject to this Section, this TOS will remain in full force and effect while using the Service or Site. We may (i) suspend or terminate a User’s rights to use the Service and/or Site (including any Account); or (ii) terminate this TOS, at any time for any reason at our sole discretion, including for any use of the Service or Site in violation of this TOS. Upon termination of this TOS, a User’s Account and right to access and use the Service or Site will terminate. For clarification purposes, suspension or termination of a User or this TOS will not affect a User’s accrued obligations which have not been performed, and Users will continue to perform such obligations until fully discharged using a method to be announced by Cinely. For example, if a Producer has been selected by Client and has entered into the Contract with Client, and such User is terminated by Cinely for breach of these terms, Producer is still under the obligation to produce and deliver the Commissioned Work to Client under the Contract, unless otherwise notified by Cinely. . User understands that any termination of an Account may involve deletion of User Content associated therewith from our live databases; however we reserve the right to continue to use User Content. Cinely will not have any liability whatsoever to User for any termination of this TOS, including for termination of any Account or deletion of User Content. Even after this TOS is terminated, the following provisions of this TOS will remain in effect: Sections 4 (excluding Section 4.4(a)), 5, 6, 7, 8, 9, 10, 11, and 13.

If the Australian Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this TOS and permits the limitation of liability for breach of warranty implied by legislation, the liability of Cinely is limited, at the option of Cinely, to: (a) in the case of goods, any one or more of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and (b) In the case of services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.

13. GENERAL.

13.1 Governing Law.

(a) Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between User and Cinely arising under or related in any way to this TOS, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to User’s use of any of the Cinely Service or Site.

(b) USER AGREES THAT BY ENTERING INTO THIS TOS, USER AND CINELY ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. USER AND CINELY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.

(c) The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is ten thousand US dollars ($10,000) or less, the AAA, User and Cinely must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds ten thousand US dollars ($10,000), the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in Los Angeles, CA. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Los Angeles County, California. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Los Angeles County, California. This TOS shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, USA without giving effect to any law that would result in the application of the law of another jurisdiction.

13.2. Entire Agreement. This TOS constitutes the entire agreement between User and Cinely regarding the use of the Service and Site. Our failure to exercise or enforce any right or provision of this TOS shall not operate as a waiver of such right or provision. The section titles in this TOS are for convenience only and have no legal or contractual effect. If any provision of this TOS is, for any reason, held to be invalid or unenforceable, the other provisions of this TOS will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. User’s relationship to Cinely is that of an independent contractor, and neither party is an agent or partner of the other. This TOS, and User’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by User without Cinely’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this TOS shall be binding upon assignees.

13.3. Copyright/Trademark Information. All trademarks, logos and service marks (“Marks”) displayed on the Site are our property or the property of other third parties. User is not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.