Terms of Service
Last update: July 30th, 2012
These Terms of Service govern all use of Minoto Interactive Media Group B.V. (“Minoto Video”)_ website minotovideo.nl ("Minoto Video Website"), Minoto Video's (including its licensors', suppliers' and partners') technology, all Contracts, and all Services (as defined further below). By accessing, receiving, and/or 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 Minoto Video that are applicable to any other website where the Services are found. If you do not agree to any of the terms contained herein, You should cease to use or access the Services.
MINOTO VIDEO 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 Minoto Video SHALL HAVE NO LIABILITY TO YOU AS A RESULT OF ANY SUCH CHANGES.
1.1 "Account" means a Minoto Video user profile created by You or for You and used to make selections with respect to the presentation, management, distribution and/or end user access to Content.
1.2 "Content" means any and all audio and video materials including, without limitation, text, images, logos, artwork, graphics, pictures, advertisements, sound and any intellectual property contained in any such materials provided by users which is uploaded or otherwise provided by, or viewed by, You and/or Your agents and/or Your users in connection with the Services.
1.3 "Contract" means an "Minoto Video Services Agreement," "Services Agreement and Order Form," supplemental order form, and/or similar document(s) provided by Minoto Video which You have signed and/or an agreement to which You have agreed by way of clicking or signing to accept and/or a statement of work and/or other written agreement between You and Minoto Video or other authorized agents.
1.4 "Demo Account" means a temporary account provided to You by Minoto Video that permits a potential customer to use the Services on a trial basis for a limited time period, free of charge.
1.5 "Minoto Video Fees" means all fees relating to any or all of the Services including, without limitation, all fees set forth in a Contract.
1.6 "Player" means Minoto Video's cross-platform video player which forms part of Minoto Video and which controls video playback and other features.
1.7 "Services" means any and all products and/or services that are provided and/or made available to You by or through Minoto Video and/or its authorized resellers, partners, licensors and/or suppliers pursuant to a Contract or Demo Account, including but not limited to Minoto Video and the Player, technical support, engineering work, and/or any other professional services.
1.8 "Term" and "Initial Term" have the meanings set forth in Section 4 of these Terms of Service.
1.9 "You" and "Your" means the individual, corporation or other entity which (i) has entered into a Contract, (ii) has received a demonstration account through Minoto Video or one of its resellers, and/or (iii) otherwise uses the Services.
2. Grant of Licenses; Scope of License; Restrictions
2.1 Grant of Licenses.
(a) Right to Use the Services. Provided You comply at all times with all terms and conditions of Your Contract(s) and these Terms of Service, Minoto Video grants to You, during the Term specified in the Contract(s) or the limited time period specified for the Demo Account issued to You, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to use the Services. For greater certainty, nothing herein permits You to use the Services without first obtaining the necessary rights and consents described herein and in any Contract.
(b) Content. You hereby grant Minoto Video a worldwide, royalty-free, non-exclusive, transferable, license to perform such acts with respect to the Content solely as are reasonable or necessary to provide the Services including, without limitation, the right to: (i) deliver Content in accordance with the preferences You set using Your Account and any authorized subaccounts; (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, and/or reproduce (in any form) the Content on or through the Services; and (iv) utilize Content to test Minoto Video'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 that You provide including, without limitation, ensuring that the Content does not include Prohibited Content and does not violate any third party rights, as further described therein and elsewhere in these Terms of Service. By uploading Content you also certify that you own all rights to the content or that you are authorized by the owner to make the content publicly available on YouTube, and that it otherwise complies with the YouTube Terms of Service located at http://www.youtube.com/t/terms
(b) Content. Minoto Video and the Services are passive conduits of the Content and Minoto Video has no obligation to edit, review, monitor or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and Minoto Video assumes no responsibility or liability relating thereto. You further acknowledge and agree that the Services and the Content provided by third parties may contain errors or omissions. Under no circumstances will Minoto Video be liable in any way for any user or other third party Content, including, but not limited to, for any defamation, infringement, 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. Minoto Video does not guarantee that any Content will be to Your satisfaction. You acknowledge Minoto Video is not responsible for preventing or identifying infringement of intellectual property rights or other violations associations with the Content, and Minoto Video 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 Minoto Video.
(c) Third Party Materials/Products/Services. Any third party products, Content, services or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services that may be subject to their own, separate license agreements or special pass-through terms, and You assume all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 2.2(c) diminishes Minoto Video's obligations to You under these Terms of Service with respect to Minoto Video's (or its licensors' or suppliers') technology within the Services (the "Minoto Video IP"), but instead relates to any access and/or use of third party products and/or services that You elect to utilize in connection with the Minoto Video IP (regardless of whether Minoto Video provides integration services at Your request in connection with third party products and/or services). If You utilize YouTube in connection with the Services and YouTube does not charge You to view its content, then the Minoto Video Fees will also never include charges for the YouTube content.
(e) Content Preservation and Disclosure. You expressly acknowledge and agree that Minoto Video may preserve and store 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 a Contract or 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 Minoto Video, its licensors, suppliers, partners, Minoto Videos, or users and/or the public. You acknowledge and agree that the technical processing and transmission of the Services, including the Content, may involve (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(f) Demonstration Accounts. At Minoto Video's discretion, You may receive a Demo Account which may include limited access to test certain features and functionality of the Services free of charge. Minoto Video may suspend or terminate the Demo Account at any time with or without notice. At the end of any demonstration period as determined by Minoto Video, 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 Minoto Video (or one of its resellers) or, if no such agreement has been executed, then pursuant to the Minoto Video's then-current standard pricing schedule, which may (be available on the Minoto Video Website or Your Account interface.
(g) Reporting. You hereby agree and acknowledge that data recorded and tracked manually by us or by our Service and reconciled at month-end by us will be used as the sole basis for calculating payments and fees associated with your use of the Service. After the Evaluation Period, if the term of this Agreement is extended, you will have access to the estimated tracking data relevant to your Minoto Video account via the online reporting located on the Minoto Video website. All estimated tracking data is subject to reasonable adjustment and accounting reconciliation by us. Therefore, we cannot and do not make any representations or warranties (express or implied) as to the accuracy of data displayed at any time in the online reporting located on the Minoto Video website.
Any disputes between you and Minoto Video regarding the number of impressions generated by your Minoto Video account shall be decided solely in accordance with reports generated from our systems. Determinations rendered by us in respect of any such disputes shall be final and binding. Any attempt by you (or by persons and/or machines associated with, or under your control or direction) to control, alter, change, modify, manipulate, influence or otherwise affect the generation of impressions so as to conflict in any way with this Agreement, or otherwise conflict with the functions of the Service, shall result in: (a) the immediate disqualification of the your Minoto Video account from any future use of Service, and (b) the forfeiture of any and all unpaid payments to such disqualified Minoto Video account.
(h) Up-Time Availability & Limited Remedy for Disruption of Services. Excluding scheduled maintenance, as described below, and disruptions due to circumstances or events not within Minoto Videos reasonable control such as, but not limited to, events related to Force Majeure or an unauthorized act of a third party, Minoto Video guarantees that (i) the Service will be available to Partner, defined as communications, 99.0% of the time; (ii) the specific hardware, operating system, application software, and network equipment located and managed in Minoto Video facilities and other points of presence utilized to deliver the Service will be available 99.0% of the time. Both parties acknowledge and agree that Minoto Video is not responsible for slow performance when caused by low-performance end-user computers, low-bandwidth end user Internet connections, periodic network congestion among Minoto Video backbone network providers, and low-bandwidth connectivity from redirected image and video sources, improperly configured campaigns, and low-bandwidth connectivity from any Partners content servers. In the event, Minoto Video identifies slow performance due to its system, Minoto Video shall use commercially reasonable efforts to restore the Service to acceptable performance levels and will notify Partner via e-mail and/or telephone. Partners sole and exclusive remedy in the event of any disruption of the Service shall be termination of this Agreement upon written notice to Minoto Video within five (5) days of such disruption.
In consideration of Your rights in and to the Services, You shall timely pay Minoto Video in Euros the Minoto Video Fees designated in your Contract(s). You are solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes, surcharges, tariffs or other amounts attributable to the exploitation of the Content under the Contract(s). Minoto Video Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Minoto Video may, with or without notice, suspend or terminate access to the Services if You are more than thirty (30) days delinquent in paying any portion of the Minoto Video Fees. In the event that a Contract is terminated prior to the end of the Term for any reason other than an uncured material breach by Minoto Video, all committed fees for the Term shall become immediately due and owing in full. After the Initial Term of a Contract or renewal thereof (as applicable), the Minoto Video Fees shall be subject to Minoto Video's standard pricing changes.
4. Term and Termination
The term of a Demo Account shall be as determined by Minoto Video in its sole discretion. The term of all Contracts shall be the initial committed term (the "Initial Term") and all renewals (collectively referred to herein as the "Term"). Either party can terminate the Contract effective as of the end of the then-current term by notifying the other party in writing or email at least thirty (30) days prior to the end of then-current term. Upon the termination of a Contract any reason, You shall immediately discontinue all use of the Services and Minoto Video is not obligated to provide you with any Services. You may suspend or terminate a Contract if Minoto Video materially breaches a term or condition of the Contract and such breach has not been cured within thirty (30) days of written notice by providing Minoto Video with written notice of such suspension or termination, provided however that all Minoto Video Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination. Minoto Video may in its sole discretion terminate or suspend the Contract and/or Your access to the Services: (a) should You fail to comply with a term or condition of Your Contract, these Terms of Service; (b) based on any conduct that Minoto Video believes is or may be directly or indirectly harmful to other users, to Minoto Video or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that Minoto Video reasonably believes may be a violation of law, third party rights, and/or Minoto Video's Prohibited Activities or restrictions on Prohibited Content, or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on You, Minoto Video, and/or its suppliers with respect to provision of the Services. Minoto Video's right to suspend or terminate Services as set forth in this Section shall not absolve You of any payment or indemnification obligations described herein or diminish any other remedy available to Minoto Video or its partners/suppliers/resellers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Contract(s).
5. Title and Ownership
Minoto Video and its suppliers and licensors own all right, title and interest in and to the Services including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. As between You and Minoto Video, any and all trademarks that Minoto Video uses in connection with the Services are owned by Minoto Video and any goodwill associated with the use of such marks shall inure to the benefit of Minoto Video. In no event shall the Services be deemed sold or assigned to You. Any and all rights not expressly granted by Minoto Video are reserved to Minoto Video and its suppliers and licensors. If You provide any feedback about the Services to Minoto Video, Minoto Video shall have the rights to freely use such feedback including to create derivative technologies and compilations based on or developed through or by using such feedback. You acknowledge and agree that (a) Minoto Video is not subject to any confidentiality obligations in respect to the feedback, (b) the feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the feedback to Minoto Video, (c) Minoto Video (including all of its successors and assigns and any successors and assigns of any of the Minoto Video Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize feedback in any Minoto Video offerings, and (d) You are not entitled to receive any compensation or re-imbursement of any kind from Minoto Video or any of the other users of the Services in respect of the feedback.
You represent and warrant that You are solely responsible and liable for: (i) 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 which you provide; (ii) 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); (iii) 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); (iv) obtaining public performance licenses from public performance rights collection organizations (e.g., ASCAP, BMI or SESAC); (v) complying with all laws, rules and applicable regulations; (vi) any Prohibited Content; and (vii) abiding by all the terms of these Terms of Service.
7. Disclaimer of Warranties
MINOTO VIDEO 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 MINOTO VIDEO IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND MINOTO VIDEO'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 Minoto Video and its suppliers, licensors, partners, and resellers and their respective officers, employees, licensors, agents, and affiliates, and all successors in interest to the foregoing, from and against any and all third party claims, damages, costs and expenses (including reasonable attorneys' fees and litigation expenses) relating to, 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 otherwise than permitted herein, including but not limited to claims relating to, arising out of, or in connection with Prohibited Activities or Prohibited Content or Your breach of any of these Terms of Service and/or Your Contract(s), including but not limited to any of the representations or warranties in Section 6.
9. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL MINOTO VIDEO OR ITS SUPPLIERS, RESELLERS, PARTNERS, OR LICENSORS OR ANY OF THEIR SUCCESSORS IN INTEREST (COLLECTIVELY HEREIN, "MINOTO VIDEO") 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 MINOTO VIDEO 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 MINOTO VIDEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY AND MINOTO VIDEO'S TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE CONTRACT(S) 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 MINOTO VIDEO FEES FOR USE OF THE SERVICES THAT YOU PAID DIRECTLY TO MINOTO VIDEO IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ONE THOUSAND EUROS (€1,000). 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.
In some jurisdictions, limitations of liability (or certain heads of liability) are not permitted. In such jurisdictions, the foregoing limitation may not apply to You.
10. Compliance With Laws; Government Restricted Rights
The Services are of Dutch origin and users must comply with applicable national, provincial, federal, local and international laws relating to use of the Services.
11. Publicity and Marketing
Neither You nor Minoto Video will issue any press releases or make public statements relating to any purchase order, order form, or similar contract between You and Minoto Video nor the relationship between You and Minoto Video without the other party's prior written approval, which shall not be unreasonably withheld. However, Minoto Video shall be permitted to line-list You as a customer and use Your standard logo for Minoto Video's promotional and marketing use until your use of the Services expires or otherwise terminates.
12. Governing Law; Dispute Resolution
You understand and agree that the Contract(s) and these Terms of Service shall be governed by the laws of the Netherlands, 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 courts located in Rotterdam, The Netherlands and each party irrevocably submits to such exclusive jurisdiction and venue.
In the event of any conflict between or among any Contract(s) executed by both You and Minoto Video and these Terms of Service, the Contract shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.
14. General Provisions
If you have any questions about these Terms of Service or if you wish to provide any feedback with respect to the Services, please contact us at: [email protected]