Playwire Terms of Service
IMPORTANT – PLEASE READ CAREFULLY: THESE TERMS OF SERVICE CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY) AND PLAYWIRE LLC, ITS SUPPLIERS AND LICENSORS (COLLECTIVELY, “PLAYWIRE”) AND GOVERNS YOUR USE OF THE PLAYWIRE PLAYWIRE™ SOFTWARE (“PLAYWIRE™”), THE BOLT™ PLAYER (THE “PLAYER”), AND/OR THE PLAYWIRE INTERACTIVE VIDEO TECHNOLOGY (“INTERACTIVE VIDEO”). PLAYWIRE™, THE PLAYER, AND THE INTERACTIVE VIDEO AND ANY OTHER SERVICES PROVIDED TO YOU BY PLAYWIRE AND ITS SUPPLIERS ARE INDIVIDUALLY AND COLLECTIVELY REFERRED TO IN THESE TERMS OF SERVICE AS “SERVICES”.
IF YOU HAVE NOT ENTERED INTO A WRITTEN AGREEMENT WITH PLAYWIRE, THEN BY CLICKING ON THE “I ACCEPT” BUTTON AND INSTALLING, COPYING OR OTHERWISE USING THE SERVICES AS PERMITTED HEREIN, YOU AGREE THAT YOUR USE IS SUBJECT TO THESE TERMS OF SERVICE. YOUR USE OF THE SERVICES ACKNOWLEDGES THAT YOU HAVE READ THESE TERMS OF SERVICE, UNDERSTAND THEM, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS STATED HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREOF, CLICK ON THE “CANCEL” BUTTON AND DO NOT DOWNLOAD, INSTALL OR USE THE SERVICES.
IF YOU HAVE ENTERED INTO A WRITTEN AGREEMENT WITH PLAYWIRE THAT INCORPORATES THESE TERMS OF SERVICE BY REFERENCE THEREIN, THEN YOU HAVE AGREED TO BE BOUND BY THE TERMS AND CONDITIONS STATED HEREIN (EVEN IF YOU DO NOT CLICK TO ACCEPT AS DESCRIBED ABOVE).
BY ACCEPTING THESE TERMS OF SERVICE, YOU REPRESENT THAT YOU ARE AUTHORIZED TO USE THE SERVICES AND ACCEPT THE OBLIGATIONS SET FORTH HEREIN ON YOUR OWN BEHALF OR ON BEHALF OF ANOTHER PERSON OR ENTITY. ANY AND ALL UNAUTHORIZED USE OF THE SERVICES IS STRICTLY PROHIBITED.
These Terms of Service govern all use of the Playwire website (“Playwire Website”), Playwire’s (and its suppliers’) technology, and all services provisioned, provided, and/or performed by Playwire, LLC (“Playwire”), including but not limited to that in connection with Playwire™, the Bolt™ Player, and Playwire’s interactive video technology (individually and collectively, the “Services”). By using the Services, you agree, without limitation or qualification, to be bound by and to comply with these Terms of Service and any other posted guidelines or rules required by Playwire that are applicable to any other website where the Service is found.
PLAYWIRE RESERVES THE RIGHT, AT ITS SOLE DISCRETION, TO ALTER OR UPDATE THESE TERMS OF SERVICE AND/OR THE SERVICES AT ANY TIME WITH OR WITHOUT NOTICE INCLUDING, WITHOUT LIMITATION, FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, LICENSING TERMS, RELEASE DATES, GENERAL AVAILABILITY OR OTHER CHARACTERISTICS. BY CONTINUING TO USE THE SERVICES AFTER ANY SUCH CHANGES, YOU AGREE TO BE BOUND BY SUBSEQUENT CHANGES AND ACKNOWLEDGE THAT PLAYWIRE SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
1.1 “Account” means a user profile created by you when installing the Player and used to make selections with respect to the presentation, management, distribution and end user access to Content.
1.2 “Content” means any and all audio and video materials including, without limitation, text, logos, artwork, graphics, pictures, advertisements, sound and other related intellectual property contained in materials uploaded or otherwise provided by, or viewed by, you and/or your agents and/or your users in connection with the Services.
1.3 “Services” means Playwire™, the Player, and (if and to the extent you are so authorized by Playwire through a separate written agreement) Playwire’s interactive video technology and any other services provided to you by Playwire and/or its suppliers.
Grant of Licenses; Scope of License; Restrictions.
2.1 Grant of Licenses.
(a) Services. Provided you comply with all terms and conditions of these Terms of Service, Playwire hereby grants to you, during the term permitted by Playwire, a non-exclusive, non-transferable, limited license, without right of sublicense, to use Playwire™ and the Player.
(b) Content. You hereby grant Playwire a worldwide, royalty-free, perpetual, transferable, non-exclusive license to: (i) deliver Content in accordance with the preferences you set using your Account; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of the Content; (iii) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, promote, copy, store, reproduce, of the Content on or through the Services; and (iv) utilize Content to test Playwire’s internal technologies and processes.
2.2 Scope of Use.
(a) Responsibility for Content. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content (as defined in Section 2.3(d) below) and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service.
(b) Content. Playwire and the Services are passive conduits of the Content and Playwire has no obligation (and undertakes no responsibility or liability for any obligation) to undertake to review, monitor or oversee Content submitted, uploaded, distributed or retrieved in connection with use of the Services. You acknowledge and agree that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. You further acknowledge and agree that the Services and the Content provided by third parties may contain errors or omissions. You acknowledge and agree that Playwire does not screen or review published Content on the Services to determine whether it contains false or defamatory material, or material which is offensive, indecent, objectionable, or which contains errors or omissions. Under no circumstances will Playwire be liable in any way for any user or other third party Content, including, but not limited to, for any defamation, falsehoods, errors or omissions in any such Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such content posted, delivered, emailed or otherwise transmitted via the Services. Playwire does not guarantee that any Content will be to your satisfaction. You acknowledge Playwire is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Playwire assumes no responsibility for screening or monitoring for possible (i) infringement or enforcing your rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. For any infringement or suspected infringement of intellectual property rights, notify Playwire in accordance with Playwire’s DMCA Notification Procedures set forth in Sections 12 and 13 below).
(d) Content Preservation and Disclosure. You expressly acknowledge and agree that Playwire may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms of Service; (iii) respond to claims that any Content violates the rights of third-parties; or (iv) protect the rights, property, or personal safety of Playwire, its users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including your Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(e) Third Party Publishers. You may, in your Account, indicate your preference to distribute Content via one or more online publisher(s) (each a “Publisher”), and in such case you assume all risks and liabilities associated with the distribution of Content to such Publishers including, without limitation, the obligations set forth in Section 2.3 below.
(f) Demonstration Accounts. At Playwire’s discretion, you may receive a demonstration Account which may include limited access to test certain features and functionality of the Services free of charge (“Demo Account”). Playwire is permitted to suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by Playwire, you are responsible for paying applicable fees for use of the Services pursuant to the payment terms and prices designated in a separate agreement between you and Playwire or, if no such agreement has been executed between you and Playwire, then pursuant to the Playwire’s then-current standard pricing schedule, which may (but is not required to) be available on the Playwire Website or your Account interface.
2.3 Restrictions and Other Obligations.
(a) Services Restrictions. You are expressly prohibited from: (i) selling, renting, leasing, sublicensing otherwise transferring or distributing any copies of the Services to third parties; (ii) modifying, translating, reverse engineering, decompiling, or disassembling the Services or altering any accompanying documentation; (iii) creating derivative works based upon the Services; (iv) altering, destroying or otherwise removing any proprietary notices, images or logos displayed, provided on or embedded within the Services; (v) restricting or inhibiting others use or enjoyment of the Services; (vi) gaining unauthorized access to other Accounts; (vii) impersonating or otherwise misrepresenting any person or entity, or making false or misleading indications of origin or fact; (viii) interfering with or disrupting the Services or Playwire’s servers or networks connected thereto, or disobeying any requirements, procedures, policies or regulations of networks connected to the Services; (ix) collecting or storing personally identifying information about other users for commercial or unlawful purposes; (x) impersonating any person or entity, including, but not limited to Playwire (or one of its vendors’) officials, employees, or falsely stating or otherwise misrepresenting your affiliation with a person or entity or employ misleading email addresses or falsify information in the header, footer, return path, or any part of any communication, including emails, transmitted through the Services; and (xi) any activities that constitute or aid in software piracy, including but not limited to making available tools that can be used for no purpose other than for “cracking” software or other copyrighted Content. All of the foregoing prohibited activities set forth in this Section 2.3(a) are individually and collectively referred to herein as “Prohibited Activities”. In addition to the terms and conditions enumerated herein, you further acknowledge that you have read and agree to the terms of Playwire’s Code of Conduct located at //playwirevideo.wpengine.com/code-of-conduct/.
(b) Content Restrictions. Nothing in these Terms of Service shall be construed to grant, by implication, estoppel, or otherwise, any license or right to use any third party Content accessed via the Services without the prior written permission of the content owner. Any and all rights not expressly granted herein are reserved to Playwire, its licensors, suppliers or third party content owners. You are solely responsible for all matters arising out of or in connection with the Content including, without limitation, compliance with all applicable laws, rules and regulations, and obtaining all third party consents and other rights, approvals, licenses, consents, waivers, and other permissions necessary for the Services to be utilized hereunder and Playwire is not responsible for the: (i) selection, acquisition, distribution and licensing of Content; or (ii) acquisition and payment of any third party licenses, rights clearances or other permissions needed from unions, guilds or other entities to use Content in the manner authorized by you in your Account. You are solely responsible for maintaining copies of the Content and shall take precautionary measures to backup and protect it. Playwire has no obligation to provide you (or any third party) with backup or archival copies of any Content uploaded or distributed via the Services.
(c) Prohibited Circumvention of Publishers’ Ownership Rights. You acknowledge and agree that your rights to view the Publisher content that you provide and/or access on or through the Services are strictly limited to the terms of those rights that you obtained in connection with your acquisition of the Content itself. Except as permitted expressly by such rights, you may not copy, reproduce, modify, publish, transmit, transfer or sell, maintain, retain, create derivative works from, distribute or re-distribute, perform, link, display or in any way exploit any Content obtained through the Services, including, without limitation, by incorporating data and or Content from the Services into any e-mail, search, catalogue, directory, or other “white pages” products or service, whether browser-based, based on proprietary client-site applications, web-based, or otherwise. You understand, agree and acknowledge that engaging in any of the aforementioned conduct may constitute a crime and/or other form of unlawful behavior for which you may be held criminally and/or civilly liable.
(d) Prohibited Content. You shall not use the Services to upload, download, post, e-mail, transmit, transfer, distribute, display or link to Content that: (i) promotes illegal activity, or provides instructions for illegal activity; (ii) exploits images or discloses personally identifiable information of children under eighteen (18) years of age or otherwise harms minors in any way; (iii) you do not have the right to use for the purposes of the Services, including to Content that you do not have a right to transmit under any law or regulation or under contractual or fiduciary relationships including but not limited to inside information and confidential information learned or disclosed as part of employment or agency relationships or pursuant to nondisclosure agreements; (iv) is unlawful, harmful, threatening, abusive, violent, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful or racially, sexually, ethnically or otherwise objectionable; (v) infringes the intellectual property or proprietary rights of any third party or contributes to inducing or facilitating such infringement.; (vi) is in any way related to any raffle, sweepstakes, contest or game requiring a fee by participants; (vii) directly or indirectly is used for “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other like form of solicitation; (viii) contains any malicious or invasive software, or that could diminish the quality of, interfere with the performance of, or impair the functionality of the Services; or (ix) contains advertising, offers for sale, or sells any item you are prohibited from advertising or selling by any applicable local, state, national, or international law, including regulations having the force of law, or advertising, offers for sale, or sales any of the following items: Any firearms, explosives, or weapons; any food that is not packaged or does not comply with all laws governing the sale of food to consumers by commercial merchants; any alcoholic beverages; any tobacco products for human consumption, including, without limitation, cigarettes and cigars, any items that are indecent or obscene, that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature; any controlled substances or pharmaceuticals; any items that are counterfeit or stolen; any dangerous items; any goods or services that do not, in fact, exist; any registered or unregistered securities; any items that violate or infringe the rights of other parties; any items that you do not have the legal right to sell; any items where doing so through Playwire or the Services would cause Playwire to violate any law. All of the foregoing prohibited uses set forth in this Section 2.3(d) are individually and collectively referred to herein as “Prohibited Content”.
(e) Other Legal Restrictions. The Services may not be used to intentionally or unintentionally violate any applicable local, state, national or international law, including, without limitation, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law or use Playwire or the Services to sell, purchase, or offer to sell or purchase any registered or unregistered securities, or upload, post, email, otherwise transmit, or post links to any material that is false, misleading, or designed to manipulate any equity, security, or other market. Playwire reserves the right to charge $0.20 per minute of output video for the cost of encoding, streaming and hosting said videos in the event of any violation of the Terms & Conditions herein. You agree to comply with all applicable laws, rules and regulations that apply to their use of the Services. You, and not Playwire, shall be responsible for ensuring that your use of the Service does not constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally identifiable information or controlled technical data. You shall not (i) fail to complete any transaction after submitting an order to purchase any goods or services, subject to any specific terms and conditions governing such transactions, (ii) submit any order to purchase goods or services where you do not intend to complete the transaction, or (iii) purchase any goods or services that you are prohibited from purchasing or possessing by any law applicable to you in your jurisdiction. The responsibility for ensuring compliance with all such laws shall be the user’s alone. By submitting an order to purchase goods or services, you represent and warrant that you have the legal right to purchase such goods or services.
(f) Age Restriction for Playwire™, the Player and Responsibility for Minors. Use of the Services is not intended for persons under the age of 18 (“Minors”). Minors are not authorized by Playwire to use the Services, even if Minors set up an Account or accept the terms of any agreement. Parents or guardians may authorize Minors between the ages of 13 and 17 to use the Services, provided they assume all responsibility and legal liability for the conduct of such Minor including, without limitation, monitoring the Minor’s access and use of the Services. If Playwire learns that anyone under the age of 13 is using the Services, Playwire will require verified parental or guardian consent, in accordance with the Children’s Online Privacy Protection Act of 1998 (“COPPA”).
Registration and Privacy.
(b) Password. Access to the Account and many Services requires a secure, individual password. You must protect your passwords from disclosure or unauthorized use and you are fully responsible for all activities that occur under your password. In the event of a suspected or actual breach of security related to your password and/or any Services, you must (i) immediately notify Playwire of any unauthorized use of your password or Account or any other breach of security, and (ii) ensure that you exit from your account at the end of each session. Playwire is not liable for any loss or damage resulting from your failure to comply with the security requirements herein of any Account or your failure to maintain the confidentiality of passwords.
(c) Termination/Suspension of Account. Playwire may immediately terminate or suspend access to the Account(s) for conduct that Playwire has reasonable belief (which may be based on information provided by third parties) may include or involve, without limitation: (i) violation of third party rights such as copyright, trademark and rights of privacy and publicity; (ii) violation of Playwire’s Prohibited Activities or restrictions on Prohibited Content (each as further described in Section 2.2 above); (iii) interference with the proper functionality of any or all the Services; and/or (d) unlawful conduct in any local, state, federal or foreign jurisdiction.
Playwire may make certain technologies available as a beta release, which shall be identified as such (“Beta Version”). The Beta Version may contain different features than the final version that Playwire intends to distribute commercially. Playwire reserves the right at any time not to release a commercial version of the Beta Version, or, if released, to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree that the Beta Version may not be suitable for production or commercial use and may contain bugs or errors affecting its proper operation. You shall comply with all conditions associated with a Beta Version, including, without limitation, installing updated versions of the technologies to replace a Beta Version.
Automatic Updates/Communication Features.
The Services automatically communicate with Playwire’s servers to check for automatic updates such as bug fixes, patches, enhanced functions, security related patches or updates, and new versions of the Services. At no charge to you, Playwire may require the installation of software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Account (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of these Terms of Service. Playwire may (but is not required to) post notices from time to time on the Playwire website explaining Updates and provide instructions associated with such Updates.
Compliance with U.S. Laws.
The Services are of U.S. origin. You shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which you use the Services, including, without limitation, all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. For clarity, you, and not Playwire, shall be responsible for ensuring that your use of the Services, does not constitute a criminal offense, give rise to civil liability or otherwise violates any applicable law, regulation or ordinance, including, without limitation, U.S. law, regarding the transmission of copyrighted, trademarked Content or personally-identifiable information or controlled technical data.
Premium Partnership Payment Terms:
a) Payment Terms. Playwire will pay Publisher 50% of the gross advertising revenue received by Playwire for advertising placed on Publisher’s website, and Playwire will retain 50% of the revenue for its services. Playwire will pay Publisher only for months in which earned revenue exceeds $100 for the month. Revenue which is not paid to Publisher in any month will be credited to the account of Publisher and paid later, when accrued revenue exceeds $100.00. If Publisher wishes to change this $100.00 limit, Publisher can do so through the Playwire web interface for Client Publishers. Playwire will pay Publisher 60 days after the end of the month for which revenue was earned (Net 60). Publisher must keep its payment address, email address and telephone number in their account current. If Publisher has failed to notify Playwire of changes in Publisher’s account information, causing Playwire to be unable to notify Publisher in writing, then this Agreement shall terminate without notice, and all payments due Publisher shall be governed by the uncashed check provision below as if the payments due had been in the form of an uncashed check.
b) Sandbox Revenue. For all revenue earned by content monetized using the “Sandbox” shared feature, revenue will be split equally between Playwire (33%), the content provider (33%) and the content syndicator (33%). All Sandbox revenue will be added to the Publisher’s net revenue total and paid out according to Playwire’s standard payout terms (net 60).
c) Uncashed Checks. If Playwire mails a check for a payment due Publisher under this Agreement to the Publisher’s last known address, Publisher must cash said check within six (6) months of the date of the check or failing so to do, Publisher agrees that: (i) the funds represented by the uncashed check shall be disposed of without further notice as provided herein; (ii) for a Publisher whose last known address is in a state that has a business to business exemption in its unclaimed property laws, the Publisher agrees that it shall have no further interest in the funds represented by the uncashed check, and Playwire shall succeed to the Publisher’s interests therein; (iii) for all other Publishers, the funds represented by the uncashed check shall be deemed abandoned under applicable unclaimed property law; and (iv) Publisher agrees that six (6) months is a reasonable period after the expiration of which the actions described above shall be taken.
d) Withholding Payment. Playwire reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is deceptive or fraudulent in nature as determined by Playwire in its sole discretion. Examples of such deceptive or fraudulent acts may include, without limitation, clicks without referring URLs, extraordinary high numbers of repeat clicks, and clicks from non-approved root URLs. In addition, with respect to Display Creatives, in no event may more than five percent (5%) of Unique Visitors for any payout calculation come from one IP address. Impressions that are served but are not received due to end user blocking technology or software (e.g., pop-up blocking software) shall not count towards any payout calculation.
e) Taxes. Playwire assumes no responsibility for paying income taxes on behalf of Publisher. By participating in the Playwire Marketplace, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Playwire harmless from any such taxes. Playwire shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to Playwire for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Playwire may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Playwire’s sole and absolute discretion.
f) Notwithstanding the foregoing, if an advertiser files for bankruptcy or any other similar proceeding (a “Bankruptcy”) at anytime and for any reason, then Playwire will not be responsible for paying any amounts to Publisher that are not collected as a result of the such Bankruptcy. If Playwire has already pre-paid any amounts to the Publisher and Playwire is unable to collect a payment from the advertiser as a result of a Bankruptcy or for any other reason whatsoever then, in Playwire’s sole and absolute discretion, Publisher will pay back such pre-paid amounts or Playwire may take a credit against future payments to Publisher. Furthermore, if Playwire is required to repay any amounts as a result of such Bankruptcy and any amount have been paid in whole or in part to Publisher, then Publisher shall immediately return any amounts paid pursuant to the Revenue Share which are subject to such Bankruptcy.
Pay-As-You-Go Payment Terms:
For The Services shall be provided at the fee set forth on the registration page (the “Services Fee”). The Services Fee (and all applicable sales, use or value-added taxes) shall be paid by you by credit or debit card. You shall provide Playwire with that credit card and/or debit information required by Playwire to accept payment of the Services Fee. You hereby authorize Playwire to use such information to debit or credit, as applicable, your credit or debit card for payment of the Services Fee. In addition to any other rights granted to Playwire herein, Playwire reserves the right to suspend or terminate this Agreement and your access to the Services if Playwire is unable to use your credit or debit card for payment of the Services Fee. To the extent that this Agreement is terminated pursuant to Section 8 below, Playwire will have no obligation to refund or issue a credit (on a pro-rata basis or otherwise) to you related to the remaining portion of the Services term. In the event that the credit card that you supplied is unable to fully pay the Services Fee, you will be responsible for all expenses (including attorneys’ fees) incurred by Playwire in collecting such amounts, and Playwire reserves the right to apply a service charge to any unpaid balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law) for any fee or other amount not paid by the due date provided.
Playwire may terminate or suspend your access to the Services: (a) should you fail to comply with a term or condition these Terms of Service and/or any applicable services agreement or other written agreement between you and Playwire; (b) for any conduct that Playwire believes is or may be directly or indirectly harmful to other users, to Playwire or its subsidiaries, affiliates, or business contractors, business partners, suppliers, or to other third parties, (c) for any conduct that Playwire believes may be a violation of third party rights such as copyright, trademark and rights of privacy and publicity or a violation of Playwire’s Prohibited Activities or restrictions on Prohibited Content (each as further described in Section 2.2 above); (d) interference with the proper functionality of any or all the Services or those of Playwire’s suppliers; and/or (e) for any conduct that violates any local, state, federal, or foreign laws or regulations .
Title and Ownership.
Playwire and its suppliers and licensors own all right, title and interest in and to the Services as well as any content created in conjunction with the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. Any and all trademarks that Playwire uses in connection with the Services are owned by Playwire and any goodwill associated with the use of such marks shall inure to the benefit of Playwire. In no event shall the Services be deemed sold or assigned to you. Any and all rights not expressly granted by Playwire are reserved to Playwire and its suppliers and licensors. Playwire is not required to accept unsolicited feedback. If you provide any feedback about the Services to Playwire, Playwire shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. You shall take all necessary actions to affect Playwire’s rights in and to such feedback.
You represent and warrant that you are solely responsible and liable for: (a) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) any payments to any labor unions and guilds, to the extent required under applicable collective bargaining agreements or otherwise (e.g., residuals, re-use, rerun and other similar fees); (d) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (e) complying with all laws, rules and applicable regulations; (f) any Prohibited Content; and (g) abiding by all the terms of these Terms of Service.
Disclaimer of Warranties.
PLAYWIRE MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY FOR YOUR PURPOSES OF THE SERVICES OR CONTENT YOU MAY RETRIEVE BY OR THROUGH THE SERVICES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES AND ANY CONTENT RETRIEVED BY OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND PLAYWIRE IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND PLAYWIRE’S REASONABLE CONTROL. YOU UNDERSTAND AND AGREE THAT ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN THE DOWNLOAD OF SUCH CONTENT OR OTHER MATERIAL.
Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
You shall defend, indemnify and hold harmless Playwire and its suppliers and resellers and their respective officers, employees, licensors, agents, and affiliates against any and all claims, damages, costs and expenses (including reasonable attorneys’ fees and litigation expenses) arising out of or in connection with the Content and/or your use (which includes use by your employees, agents, customers, and users) of the Services, including but not limited to claims arising out of or relating to Prohibited Activities or Prohibited Content or your breach of any of these Terms of Service, including but not limited to any of the representations or warranties set forth herein.
D.M.C.A. COPYRIGHT INFRINGEMENT NOTIFICATION PROCEDURE.
Playwire respects the intellectual property rights of others and expects you and your agents to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at //www.copyright.gov/legislation/dmca.pdf, Playwire will respond expeditiously to claims of potential copyright infringement committed using the Services. Copyright owners or a party authorized to act on behalf of an owner, should please report potential copyright infringement by completing the following DMCA notice and delivering it to the Playwire Designated Copyright Agent. Upon receipt, Playwire will take whatever action, in its sole discretion, it deems appropriate, including removal of the potentially infringing material and/or termination of the potential infringer’s Account.
Please send either an email to sberger@Playwire.com (Subject: DMCA Notification), a facsimile to: (954)252-2561 (Attn: DMCA Notification), or letter to the address provided below with all of the following information:
(a) Identify the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(b) Identify the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to locate the material. Providing URLs in the body of an email is the best way to help Playwire locate Content quickly.
(c) Provide Information reasonably sufficient to permit Playwire to contact you, the complaining party, such as an address, telephone number, and, if available, an electronic mail address.
(d) A statement that you, as the complaining party, or as one who has authorization to act on behalf of the copyright owner, has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. As an example, “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner or its agent.”
(e) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. As an example, “I hereby state that the information in this notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
(f) Provide your full legal name and your electronic or physical signature.
Such written notice should be sent to Playwire’s designated agent as follows:
1000E Hillsboro Blvd.
Deerfield Beach, FL 33441
D.M.C.A. COPYRIGHT INFRINGEMENT COUNTER-NOTIFICATION.
The process for counter-notifications is governed by Section 512(g) of the Digital Millennium Copyright Act: //www.copyright.gov/legislation/dmca.pdf. To file a counter-notification with Playwire, a written communication that sets forth the items specified below must be provided. Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Playwire will terminate you or any user who is a repeat infringer. Accordingly, if you are not sure whether certain material infringes the copyright of others, you should contact an attorney.
(a) Elements of Counter-Notification. To file a Counter-Notification, please send either an email to support@Playwire™.com (Subject: DMCA Counter-Notification), a facsimile to: (954)252-2561 (Attn: DMCA Counter-Notification), or letter to the address provided below with all of the following information:
To expedite Playwire’s ability to process counter notifications, please use the following format (including section numbers):
(i) Identify the specific URLs of material that Playwire has removed or to which Playwire has disabled access.
(ii) Provide your full name, address, telephone number, and email address, and the username of the Account.
(iii) Provide a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or Broward County, Florida if your address is outside of the United States), and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
(iv) Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
(v) Sign the notice. If you are providing notice by e-mail, a scanned physical signature or a valid electronic signature will be accepted.
Such written notice should be sent to Playwire’s designated agent as follows:
1000E Hillsboro Blvd.
Deerfield Beach, FL 33441
(b) What happens next? After Playwire receives a counter-notification, Playwire will forward it to the party who submitted the original claim of copyright infringement. Please note that when Playwire forwards the counter-notification, it will includes any personal information provided to Playwire and submitting a counter-notification requires unencumbered consent to having such information revealed in this way. Playwire will not forward the counter-notification to any party other than the original claimant.
After Playwire sends out the counter-notification, the claimant must then notify Playwire within ten (10) days that he or she has filed an action seeking a court order to restrain the infringer from engaging in infringing activity relating to the material distributed via the Services. If Playwire receives such notification, Playwire will be unable to restore the Content to the Services until resolution of any court action. If Playwire does not receive such notification, Playwire may, at its sole discretion, reinstate the Content.
Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL PLAYWIRE OR ITS SUPPLIERS, RESELLERS, OR LICENSORS BE LIABLE TO YOU OR ANY USER BASED ON YOUR OR THAT USER’S USE OR MISUSE OF AND/OR RELIANCE ON THE SERVICES OR THE CONTENT YOU RETRIEVE BY OR THROUGH THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PLAYWIRE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF PLAYWIRE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND PLAYWIRE’S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES AND/OR THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY YOU, UP TO THE GREATER OF THE AMOUNTS PAID DIRECTLY TO PLAYWIRE FOR USE OF THE SERVICES OR ONE THOUSAND U.S. DOLLARS ($1,000.00). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE FOR ANY REASON. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT PLAYWIRE’S ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THESE TERMS OF SERVICE. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN OR THROUGH THE SERVICES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE PLAYWIRE WEBSITE OR PLAYWIRE NETWORK OR THAT OF ITS SUPPLIERS, RESELLERS, OR LICENSORS. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Playwire and its suppliers and resellers shall not be responsible for any failure to perform, or delay in performing any of its obligations to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.
Government Restricted Rights.
If the Services are licensed for use by the United States or in the performance of a U.S. government prime contract or subcontract, you agree that the Services are delivered as: (a) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data—Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (b) as a “commercial item” as defined in FAR 2.101; or (c) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Services by the Department of Defense shall be subject to the accompanying license agreement provided in DFARS 227.7202 (Oct 1998). All other use, duplication or disclosure of the Services by the U.S. government will be subject to the accompanying license agreement and restrictions set forth in FAR 52.227-19©, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data—General Alternative III (Jun 1987). Contractor/licensor is Playwire, LLC, 1000E Hillsboro Blvd., Deerfield Beach, FL 33441.
Governing Law; Dispute Resolution.
You understand and agree that these Terms of Service shall be governed by the laws of the State of Florida as such laws apply to contracts between Florida residents performed entirely within Florida, without regard to conflict of law provisions. Any action or proceeding arising from or relating to these Terms of Service may only be brought in the State and Federal courts located in Broward County, Florida and each party irrevocably submits to such exclusive jurisdiction and venue.
These Terms of Service constitute the complete and exclusive agreement between you and Playwire with respect to its subject matter; provided, however, that if you and Playwire enter into a written services agreement or some other written agreement that expressly incorporates these Terms of Service by reference, then these Terms of Service shall be subject to such other agreement as set forth therein. If any provision of these Terms of Service is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. You and Playwire are independent contractors, no joint venture, partnership, employment, agency or exclusive relationship exists between you and Playwire as a result of these Terms of Service or your use of the Services as authorized hereunder. The failure of you or Playwire to enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision. You may not transfer or assign these Terms of Service or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Playwire. These Terms of Service shall inure to the benefit of and be binding upon Playwire’s or your respective permitted successors and assigns.
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