Date of Last Revision: June 10, 2016
PLEASE NOTE THAT BY ACCESSING OR USING ANY PART OF THE WEBSITES REGARDLESS OF HOW YOU INTERACT WITH US – ONLINE, MOBILE, OR IN ANY OTHER MANNER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE DISPUTE RESOLUTION PROCEDURE. IF YOU DO NOT AGREE TO BE SO BOUND, DO NOT ACCESS OR USE THE WEBSITES. DIGITAL MYTHS STUDIO RESERVES THE RIGHT TO MAKE CHANGES TO THIS AGREEMENT AT ANY TIME. YOUR CONTINUED USE OF THE WEBSITES CONSTITUTES ASSENT TO ANY NEW PROVISIONS OF THIS AGREEMENT THAT MAY BE POSTED ON THE WEBSITES IN THE FUTURE.
Using the Websites.
- Eligibility. Users of the Websites must reside and be located in the U.S. and must be at least eighteen (18) years of age. The Websites are not intended for children under eighteen (18) years of age.
- Mobile. The Websites are available on mobile devices. Do not use the Websites in a way that distracts you and prevents you from obeying traffic or safety laws.
- License. By posting, storing or transmitting any content on or to the Websites, you hereby: (i) grant Digital Myths Studio, and represent and warrant that you have the right to grant, a perpetual, worldwide, non-exclusive, royalty-free, fully paid up, transferable, sublicensable, right and license to use, copy, display, perform, create derivative works from, distribute, have distributed, transmit and sublicense such content in any form, in all media now known or hereinafter created, anywhere in the world, for any purpose, commercial, advertising, or otherwise, and (ii) agree that the content is subject to being changed, rejected, or deleted without notice or explanation to you. You hereby irrevocably waive any claims based on moral rights, if any.
- Our Right to Use Your Name. If you provide to Digital Myths Studio directly any comments, ideas, or suggestions that are accompanied by your name, Digital Myths Studio may use both your comments, ideas, and suggestions, and your name, or your first name and last name initial, for our marketing purposes without compensation or acknowledgement of any kind.
- Prohibited Content. You may not submit or transmit any content that: (i) is libelous, defamatory or slanderous; (ii) advocates the violent overthrow of the government of the United States; (iii) incites, encourages or threatens immediate physical harm against another; (iv) presents an immediate and genuine danger to another person or entity; or (v) violates any applicable law, regulation, or rule.
- User Conduct. In, or as a result of, your use of the Websites, you may not: (a) infringe any patent, trademark, trade secret, copyright, right of publicity, or other right of any party, or upload, post, transmit, share, store or otherwise make publicly available on the Websites any private information of any third party or any information that would encourage or provide instructions for an unlawful activity; (b) disrupt or interfere with the security or use of the Websites, or any website linked to the Websites; (c) interfere with or damage the Websites, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; (d) impersonate another person or entity, misrepresent your affiliation with a person or entity, including (without limitation) Digital Myths Studio, federal, state, or municipal government, or a political candidate; or create or use a false identity; (e) attempt to obtain unauthorized access to the Websites or portions of the Websites that are restricted from the access granted to you; (f) engage, directly or indirectly, in transmission of spam, chain letters, junk mail or any other type of unsolicited solicitation; (g) collect, manually or through an automatic process, information about other users (including e-mail addresses or other contact information) without their express consent or other information relating to the Websites; (h) use any meta tags or any other hidden text utilizing Digital Myths Studio’s name, any trademarks, or any product names in any manner and in any place; (i) advertise, offer to sell, or sell any goods or services; (j) engage in any activity that interferes with any third party’s ability to use or enjoy the Websites; (k) upload, post, transmit, share, store or otherwise make available any videos other than those you have taken personally, are of a personal nature that contain images of people you know personally and who have consented to being in the video, and which are original art or animation (including any audio or music that is part of the video) created by you; (l) copy, modify, reverse engineer, decompile, disassemble, tamper with, extract or attempt to extract the source code of the software for our products or services, in whole or in part, or create any derivative works therefrom; (m) post any obscene, lewd, lascivious, violent, harassing, defamatory, infringing, abusive, inflammatory, vulgar, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable content or content otherwise injurious to third parties or that consists of or contains software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam”; or (n) assist any third party in engaging in any activity prohibited by this Agreement.
Intellectual Property Rights.
- Copyright. All materials on the Websites, including without limitation, the Digital Myths Studio logo, designs, text, graphics, information, data, images, audio, video, applications, software, metadata, compilations, graphical user interfaces, other files, and the selection, arrangement and organization thereof are either owned by Digital Myths Studio or are the property of Digital Myths Studio’s suppliers or licensors. No Websites’ content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission,. Provided that you are eligible to use the Websites, you are granted a limited license to access and use the Websites and to download or print a copy of any portion of the Websites’ content to which you have properly gained access solely for your personal, non-commercial use, provided that you do not obscure, alter or delete any trademark, copyright, or other proprietary notices. This license does not include any resale or commercial use of any Digital Myths Studio product or service, or its contents; any collection and use of any product listings, descriptions, or prices; or any derivative use of any Digital Myths Studio product or service or its contents. All rights not expressly granted to you in this Agreement are exclusively reserved and retained by Digital Myths Studio or its licensors, suppliers, rights holders, or other content providers. No Digital Myths Studio product or service, in whole or in part, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Digital Myths Studio. Except for your own user content, you may not upload or republish our Websites’ content on any Internet, Intranet or Extranet site or use the information in any other database or compilation, and any other use of our Websites’ content is strictly prohibited. Your license is subject to this Agreement and does not permit use of any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Websites or any Digital Myths Studio product or service beyond the scope of the license granted above is prohibited. The limited license granted by Digital Myths Studio terminates if you do not comply with all conditions of use set forth in this Agreement or any other agreement between you and Digital Myths. Copyright © 2016 Digital Myths Studio, Inc. ALL RIGHTS RESERVED.
- Ownership and Use. Digital Myths Studio retains ownership of its intellectual property rights and you do not obtain any rights therein by virtue of this Agreement or otherwise. You have no right to use, copy, display, perform, publish, create derivative works from, create new works or abstracts from, distribute, have distributed, transmit, or sublicense materials or content available on the Websites, except as expressly set forth in this Agreement. Notwithstanding the foregoing, you may use the content and materials on our Websites in the normal course of your use of the Websites. You may not use any third-party intellectual property without the express written permission of the applicable third party, except as permitted by law.
- Limited License To Multimedia Content. Digital Myths Studio will grant you a limited license to use the multimedia images made available through the Websites, subject to our prior written approval and discretion, if you will use such content solely for comment, news reporting, teaching, K-12 classroom use, scholarship, or research.
- Your Content. Except for the material described in the “Suggestions” section below, to which we will obtain ownership, Digital Myths Studio will not acquire an ownership interest in the materials you post, input or submit to the Websites but will acquire the non-exclusive licenses as set forth in Section 2. If you think somebody is violating your copyrights and want to notify us, please follow the instructions in Section 7. We respond to notices of alleged copyright infringement and may terminate accounts (if applicable) of infringers consistent with the process set out in the U.S. Digital Millennium Copyright Act (“DMCA”), as further described in Section 7.
- Linking and Framing. You may create a plain text hyperlink to Digital Myths Studio’s Websites provided that neither you nor the link portrays Digital Myths Studio or any of its products and services in a false or disparaging manner or suggests sponsorship, affiliation or endorsement by or with Digital Myths Studio. Digital Myths Studio may revoke this permission at any time for any reason upon notice to you. You may not “frame,” inline link, or similarly display or enclose any Digital Myths Studio marks, logos, trade dress, content or property, including, without limitation, the Websites. You may not use any Digital Myths Studio logo or other of its marks as part of the link without express written permission.
- DMCA Copyright Policy and Copyright Agent. Digital Myths Studio respects the intellectual property rights of others and expects its users to do the same. Digital Myths Studio may remove content that in its sole discretion appears to infringe the intellectual property rights of others. In addition, Digital Myths Studio, in its sole and absolute discretion, may terminate the accounts (if applicable) of users who infringe the intellectual property rights of others. If you believe that a user of the Websites has infringed your intellectual property rights, please notify Digital Myths Studio’s Copyright Agent, and provide the following information: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the intellectual property right; (b) an identification of the intellectual property claimed to have been infringed; (c) a detailed description of the material that you claim is infringing, so that we may locate it, including the URL where the infringing material appears; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the allegedly infringing use is not authorized by the intellectual property right’s owner, its agent, or the law; and, (f) a statement by you, made under penalty of perjury, that the foregoing information is accurate and that you are authorized to act on behalf of the owner of the intellectual property rights involved.
Digital Myths Studio’s Copyright Agent is and can be reached at:
Digital Myths Studio
47000 Warm Springs Blvd., #1-335
Fremont, CA 94539
Representations and Warranties.
- By Each Party. Each party represents and warrants to the other party: (i) that it has the full power and authority to enter into and perform its obligations under this Agreement, (ii) the assent to and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound, or any applicable laws, regulations or rules, and (iii) this Agreement constitutes legal, valid and binding obligations of the parties executing or assenting to this Agreement, enforceable in accordance with its terms and conditions, except that: (x) such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws, now or hereafter in effect, affecting creditors’ rights and remedies generally, and (y) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defense and to the discretion of the court before which any proceeding therefor may be brought.
- By You. You represent and warrant to Digital Myths Studio that: (i) you will not infringe the patent, copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right of any third party in your use of the Websites, and (ii) you will comply with all applicable laws, rules and regulations in your use of the Websites, including this Agreement.
- Indemnification. You agree to indemnify and hold Digital Myths Studio and its employees, representatives, agents, attorneys, affiliates, directors, officers, managers and stockholders (the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties: (a) alleging facts or circumstances that would constitute a breach of any provision of this Agreement by you or, (b) arising from, related to, or connected with your use of the Websites. If you are obligated to provide indemnification pursuant to this provision, Digital Myths Studio may, in its sole and absolute discretion, control the defense, settlement and disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle compromise or in any other manner dispose of any Claim without the consent of Digital Myths Studio.
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS.
- DISCLAIMER OF WARRANTIES. DIGITAL MYTHS STUDIO PROVIDES THE WEBSITES ON AN “AS IS” AND “AS AVAILABLE” BASIS. DIGITAL MYTHS STUDIO DOES NOT REPRESENT OR WARRANT THAT THE WEBSITES OR THEIR USE (REGARDLESS OF HOW YOU INTERACT WITH US – ONLINE, MOBILE OR IN ANY OTHER MANNER): (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE, DEVICE OR SOFTWARE YOU USE. DIGITAL MYTHS STUDIO MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NONINFRINGEMENT.
- THIRD PARTY SERVICES. THE THIRD-PARTY LINKS, SERVICES, GOODS, RESOURCES AND INFORMATION THAT DIGITAL MYTHS STUDIO PROVIDES ON OR MAKES AVAILABLE THROUGH THE WEBSITES, INCLUDING, WITHOUT LIMITATION, THOSE AVAILABLE THROUGH THIRD-PARTY ADVERTISEMENTS, ARE NOT CONTROLLED BY DIGITAL MYTHS STUDIO. ACCORDINGLY, DIGITAL MYTHS STUDIO MAKES NO WARRANTIES REGARDING SUCH THIRD-PARTY SERVICES, RESOURCES, AND INFORMATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT, AND WILL NOT BE LIABLE FOR YOUR USE OF OR RELIANCE ON SUCH THIRD-PARTY SERVICES, RESOURCES OR INFORMATION.
- EXCLUSION OF DAMAGES. DIGITAL MYTHS STUDIO WILL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE USE OF THE WEBSITES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- LIMITATION OF LIABILITY. IN NO EVENT WILL DIGITAL MYTHS STUDIO’S LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE WEBSITES EXCEED $500.
- Force Majeure. Digital Myths Studio will not be liable for failing to perform under this Agreement by the occurrence of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider to Digital Myths Studio to perform, fire, terrorism, natural disaster or war.
- Arbitration. All disputes arising out of or relating to this Agreement (including its formation, performance or alleged breach) or your use of the Websites will be exclusively resolved under confidential binding arbitration held in Alameda County, California before and in accordance with the Rules of the American Arbitration Association. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise. Notwithstanding the foregoing, Digital Myths Studio will have the right to seek injunctive or other equitable relief in state or federal court located in Alameda County, California to enforce these terms or to prevent an infringement of a third party’s rights. In the event equitable relief is sought, each party hereby irrevocably submits to the personal jurisdiction of such court.
- Changes to the Websites. Digital Myths Studio may, in its sole discretion, change, modify, suspend, make improvements to or discontinue any aspect of the Websites, temporarily or permanently, at any time without notice to you, and Digital Myths Studio will not be liable for doing so.
- Termination. Digital Myths Studio will have the right in its sole discretion, for any reason or no reason at all, without notice or liability to you or any third party, to terminate your access to the Websites, with or without cause. Such reasons may include, without limitation: (a) your breach of any part of this Agreement, or (b) your violation of the rights of any third party. Following termination, you may not be permitted to use the Websites without first obtaining Digital Myths Studio’s consent. If your access to the Websites is terminated, Digital Myths Studio reserves the right to exercise whatever means it deems necessary to prevent unauthorized access to the Websites, including, but not limited to, technological barriers, IP mapping, and direct contact with your Internet Service Provider.
- Notices and Electronic Communications. All notices required or permitted to be given under this Agreement will be in writing and delivered to the other party by any of the following methods: (a) hand delivery, (b) certified U.S. mail, return receipt requested, postage prepaid, (c) overnight courier, or (d) electronic mail. If you give notice to us you must use the address shown in Section 7. If Digital Myths Studio provides notice to you, we will use the contact information provided by you to us. All notices will be deemed received as follows: (a) if by hand-delivery, on the date of delivery, (b) if by delivery by U.S. mail, on the date of receipt appearing on a return receipt card, (c) if by overnight courier, on the date receipt is confirmed by such courier service, or (d) if by electronic mail, 24 hours after the message was sent, if no “system error” or other notice of non-delivery is generated. When you send e-mails to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the Websites or through any other Digital Myths Studio products or services. Each party agrees that any notice that it receives from the other party electronically satisfies any legal requirement that such communications be in writing.
- Suggestions. You agree that any suggestions, ideas, product uses and potential uses, product ideas, feedback or other information about the Websites or our products or services (collectively, “Suggestions”), provided by you to us are non-confidential to you and shall become by virtue of the transmission to us, or to the Websites, the sole property of Digital Myths Studio, and you hereby assign to Digital Myths Studio all right, title and interest in and to the same, including, without limitation, any and all intellectual property rights therein. We own all of the rights, exclusively, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Suggestions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
- Limitation of Actions. You acknowledge and agree that, regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Websites, must be filed within one calendar year after such claim or cause of action arises, or forever be barred.
- Integration. This Agreement contains the entire understanding between you and Digital Myths Studio regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between us, whether oral in writing, regarding its subject matter.
- Additional Terms. This Agreement is binding upon each party hereto and its successors and permitted assigns, and shall be governed by and construed in accordance with the laws of the State of California without reference to the conflict of law principles thereof. We both agree that all actions or proceedings arising in connection with this Agreement shall be arbitrated in accordance with the Arbitration provision of this Agreement exclusively in Alameda County, California, or in the event the matter is for any reason litigated, tried and litigated exclusively in the state or federal courts located in Alameda County, California. This choice of venue (for both arbitration and litigation) is intended by the both of us to be mandatory and not permissive in nature, and to preclude the possibility of arbitration or litigation between the parties with respect to, or arising out of, this Agreement in any jurisdiction other than that specified in this Section. We both waive any right either of us may have to assert the doctrine of forum non conveniens or similar doctrine or to object to the venue with respect to any proceeding brought in accordance with this Section. This Agreement and all of your rights and obligations under it is not assignable or transferable by you without the prior written consent of Digital Myths Studio. This Agreement governs the relationship between Digital Myths Studio and you and does not create any third-party beneficiary rights. No failure or delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement. You and Digital Myths Studio are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. The invalidity or unenforceability of any provision of this Agreement will not invalidate any other provision of this Agreement, all of which will remain in full force and effect. If you reside in or are subject to the laws of a jurisdiction anywhere in the world whose common, statutory, regulatory, or codified law would void this Agreement in whole or in any essential part (the essential parts being at least, but not only, the arbitration and exclusive venue provisions, disclaimers, exclusions and limitations), or which make accessing the Websites illegal, you do so entirely at your own risk.