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Legal - Commercial Terms of Service

You must read and agree to this Commercial Terms of Service Agreement ("Agreement") as a Commercial User ("Commercial User") of Animoto's website or Animoto’s video creation services made available through authorized third party websites ("Animoto Services"). Once you have been given notice of, or been provided a copy of, this Agreement (including without limitation delivery of this Agreement via an email or other method of notification) your continued use of your Commercial User account will indicate your acceptance of all of the terms of this Agreement.

Animoto's Site consists of its site located at the URL http://animoto.com, as well as its applications, widgets, and gadgets for social networks (including but not limited to Facebook Platform, MySpace Platform Google OpenSocial, Android Market, Amazon Appstore and iPhone App Store) collectively herein, the Animoto Services and the Animoto website and applications will be referred to as the "Site". As a Commercial User, you have agreed to pay fees outlined herein to Animoto for your use of the Site for commercial purposes.

There are two types of Commercial Users: (1) "Animoto Pro" account holders, who may use Animoto Videos for commercial purposes, but may only distribute or otherwise make available Animoto Videos to third parties who have agreed to use the Animoto Videos for non-commercial purposes, and (2) "Reseller" account holders, who may use Animoto Videos for commercial purposes, and may also distribute or otherwise make available Animoto Videos to third parties who intend to use Animoto Videos for commercial purposes.

You must be 18 years of age or older to be a Commercial User of the Site. You warrant that you are at least 18 years old and you have the authority to enter into these Commercial Terms of Service. If you do not agree with these Commercial Terms of Service, you must immediately stop using the Site, and Animoto Videos created therefrom, for any commercial purposes.

Though you are a Commercial User, you are a User of Animoto's Site and subject to Animoto's (non-commercial) Site Terms of Service, which are incorporated herein by reference in their entirety. There are two general types of users, registered users that have registered with Animoto or with an authorized third party that provides access to Animoto Services ("Registered Users"), and visitors of the Site ("Visitors"), such as someone invited to view another's video. Please review the Site Terms of Service.

As used herein, "commercial purposes" shall mean any use of an Animoto video that directly or indirectly derives a commercial benefit or pecuniary gain.

Once you have paid the appropriate fees to become a Commercial User, you may then create Animoto Videos that you may use for commercial purposes subject to this agreement and all applicable laws and regulations. However, you may not use Animoto Videos created prior to, after, or outside of your Commercial User membership for commercial purposes. For example, if you create an Animoto Video as a (non-Commercial) User, and subsequently become a Commercial User, you may not use such Animoto Video for commercial purposes.

Updates to these Commercial Terms of Service

This Commercial Terms of Service Agreement was last updated on July 12, 2011. We reserve the right, at any time, to modify the Site and/or the terms of this Agreement without prior notice. You will be informed of any modifications of these Terms of Service by Animoto by email or other method of notification. Modifications will become effective immediately upon the notice of modifications being sent to you. Your continued use of the Site as a Commercial User after modifications are posted will be considered an acceptance of the modified Commercial Terms of Service.

Description of Services

The Site is owned and operated by Animoto Inc., a California Corporation with a place of business at 333 Kearny Street, San Francisco, CA 94108 USA. The Site provides Registered Users and Commercial Users with the ability to have a video ("Animoto Video") automatically created by Animoto using uploaded photographs, graphics, text, or video clips ("Image Content") set to a selected or uploaded music track ("Musical Content").

You understand and agree that although we will use reasonable efforts to ensure the Site is available, temporary interruptions of the services available through the Site may occur. The services available on the Site are provided "AS IS" and Animoto is not liable to you for any temporary interruption in services.

Registration Data, Passwords, and Privacy

By registering with us, you agree that all information provided during registration is true and accurate and you will update this information in order to keep it current, complete and accurate.

During the registration process, you will be asked to select a password for your Commercial User account. The password and your Commercial User account are for your individual use only, and are not to be shared with employees, coworkers, friends or family. Commercial User accounts are only available on an individual basis, and therefore may not be shared with other individuals within your organization. You agree to keep your password confidential at all times. Animoto may at any time, and at our sole discretion, terminate your account without prior notice to you and without reimbursement if we suspect your account is being used by more than one individual.

You agree to be fully responsible for activities or transactions that relate to your account or your password. You must notify Animoto immediately if you learn of an unauthorized use of your password.

All information we obtain about you in connection with your use of the Site is subject to our Privacy Policy, which is incorporated by reference into these Commercial Terms of Service.

Payment of Fees and Scope of Use

You have agreed to pay us fees for your use of the Site for commercial purposes ("Fees"). Your use of the Site and Animoto Videos created therefrom is limited to only acceptable commercial purposes as defined herein, or as specified by Animoto on its Site ("Scope of Use"), and is subject to your compliance with these terms and payment of the Fees.

All Fees paid are nonrefundable. If you desire to use the Site or an Animoto Video for commercial purposes that are different from or beyond the Scope of Use, you must obtain written permission from Animoto, and your use for such purposes beyond the Scope of Use may be conditioned upon payment of additional fees.

Animoto may provide you with the ability to pay the Fees through a service such as Paypal, Google Checkout or other third party service. All subscriptions paid through these third parties are subject to the third party's Terms of Service, and we will not be responsible for anything contained therein. You are responsible for payment of any sales or use taxes associated with the Fees, your use of the Site or activities as a Reseller, if applicable.

Animoto will only host your Animoto Videos during the time period covered by the applicable Fees paid ("Term") and you understand and agree that in the event your status as Commercial User is terminated or interrupted for any reason, including but not limited to the expiration of the Term and/or your failure to renew a new Term, that your hosted Animoto Videos will be disabled and will not be viewable on any site, nor will they be able to be sent via email links to anyone. However, if during the Term you have downloaded an Animoto Video, then you may continue to use the Animoto Video within the Scope of Use. Note, however, that you are responsible for ensuring your use is in compliance with applicable laws, rules and regulations, and Animoto is not responsible for payments to third parties arising from such use, such as payments to Performance Rights Organizations.

In the event you terminate or fail to renew your status as a Commercial User and subsequently renew within six (6) months, all of your previously created Animoto Videos will again be live and will be viewable in the same manner as before your status as Commercial User was terminated or lapsed. If you do not subsequently renew within the six (6) month period, then your previously created Animoto Videos will be deleted and thus not be accessible.

Distribution of Animoto Videos by Animoto Pro Account Holders

Commercial Users with an Animoto Pro account may, during the Term, distribute or otherwise make available Animoto Videos to third parties if such third parties agree to use the Animoto Videos for personal use only, and subject to Animoto's Distribution Terms set forth below. For example, Commercial Users may not distribute or make available Animoto Videos to third parties if such third parties intend to use the Animoto Videos directly or indirectly to derive a commercial benefit or pecuniary gain. Your account may be terminated without prior notice or reimbursement if you distribute Animoto Videos in violation of this agreement.

Distribution of Animoto Videos by Reseller Account Holders

If you have obtained a Reseller Subscription from Animoto, then the following terms shall apply to you (a "Reseller"):

  1. During the applicable term of the Reseller Subscription ("Reseller Term"), Reseller may distribute or otherwise make available completed Animoto Videos to third parties subject to Reseller's fully paid and current subscription, timely payment of any other fees due to Animoto, if applicable, and subject to Animoto's Distribution Terms set forth below.
  2. Reseller's Subscription, and/or Animoto account, may be terminated without prior notice or reimbursement if Reseller distributes Animoto Videos in violation of these terms.
  3. Reseller agrees to promptly provide to Animoto any and all reasonably requested information sufficient for Animoto to verify Reseller's compliance with these terms.
  4. Reseller is not an agent or representative of Animoto, has no authority to act on behalf in any manner or enter into any binding agreement on behalf of Animoto, will make no representations to any parties relating to Animoto's Services or Videos other than as contained in the Distribution Terms set forth below, and shall have no authority to alter, enlarge, or limit Animoto's most current written warranty, if any.

Distribution Terms

In distributing Animoto Videos to third parties, Commercial User must obtain the third party's agreement to the below Distribution Terms (a)-(g). In addition, Animoto Pro account holders will ensure the third party agrees to Distribution Term (h). If Commercial User does not obtain the third party’s agreement to the below terms, Commercial User agrees to indemnify and defend Animoto for any and all claims or causes of action arising from the third party’s use of Animoto Videos. Commercial User assumes all responsibility for compliance with the terms of this Agreement by third party recipients of Animoto Videos.

  1. The video provided with these terms ("Video") is licensed, and not sold. Therefore, you do not own the Video, and must comply with these terms in using the Video.
  2. You are granted the limited rights to use, copy, perform and display the Video. You may not distribute the Video to others. You are not granted the rights to use, copy, perform or display the Video for broadcast television, radio, or theatrical media.
  3. You will not use Videos for any illegal or immoral purposes, including without limitation for unauthorized or illegal advertising or promotional materials, such as junk mail, spam, chain letters, or pyramid schemes.
  4. You may not modify the Video in any way.
  5. THE VIDEO IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.
  6. IN NO EVENT SHALL ANIMOTO INC. NOR THE PROVIDER OF THE VIDEO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SITE.
  7. You agree to indemnify and hold Animoto Inc. and the provider of the Video, and each of their parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of your use or misuse of the Video, your failure to comply with applicable laws, or your failure to comply with these terms.
  8. You may only use the Video for non-commercial purposes; in other words, you may not use the Video in any way that directly or indirectly derives a commercial benefit or pecuniary gain.

Audit Rights

Animoto (or a third party hired by Animoto for such purpose) shall have the right, at any time, to inspect and audit all accounts, records and other of Your information to determine your compliance with the terms contained herein. The costs of such audit shall be borne by Animoto unless the audit uncovers that You have materially breached this Agreement, and then You shall be responsible for reimbursement of all reasonable costs and expenses of such audit.

Conduct on Site

You agree to obey all applicable laws, rules and regulations in using the Site, and agree that you are responsible for the contents of your submissions or communications through the Site, including Image Content, Musical Content, and Animoto Videos created therefrom (collectively, "Submissions").

Any transfer, assignment, resale or use by a third party of an Animoto Video, in any manner or for any reason whatsoever, is subject to the terms and conditions of this Agreement. In no event can a Commercial User's rights hereunder or subscription be transferred, assigned, resold or used by a third party in any manner or for any reason whatsoever without the prior written consent of Animoto Inc. Any transfer, assignment, resale, or use in violation of this paragraph will be considered, without limitation, a violation of Animoto's proprietary rights by such third party, and will be considered a material breach of this Agreement by Commercial User.

You agree that you will not upload, share, or otherwise distribute any Submissions-- including text, graphics, images, sounds, data, music, or other information — that:

  1. are unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or impersonate another person;
  2. contain explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or in any way violate child pornography laws;
  3. victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
  4. infringe on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
  5. constitute unauthorized or illegal advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of improper solicitation, or any form of lottery or gambling;
  6. contain software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
  7. contains measures that could be used to determine the architecture of the Site, or could be used to decompile, disassemble, or reverse engineer the Site; or
  8. are not properly owned or licensed by Commercial User for the Commercial User's Scope of Use.

We do not endorse the contents of any Submissions, and expressly disclaim any and all liability in connection with Submissions. We do not pre-screen or monitor Submissions. However, we have the right at our sole discretion to remove any content of any kind that, in our judgment, does not comply with these Commercial Terms of Service and any other rules of user conduct for the Site, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content. You hereby consent to such removal and waive any claim against us arising out of such removal of content.

If you would like to notify us of content that you believe does not comply with these Commercial Terms of Service, please fill out our feedback form on our Site. Make sure to include both the Uniform Resource Locator ("URL") for the non-complying video or content, and the reasons you believe it does not comply. You understand that in using the Site, you may be exposed to materials that are objectionable. You hereby waive and agree to waive all rights, claims, and actions in law or equity against Animoto arising from your exposure to such materials.

You may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Commercial Users who violate systems or network security may incur criminal or civil liability.

You agree that we may at any time, and at our sole discretion, terminate your account without prior notice to you and without reimbursement if we suspect a violation any of these Commercial Terms of Service. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.

Linking Conditions

You may not link to the Site unless you comply with these linking conditions.

Your ability to share your Animoto Video may depend on whether you obtained access to Animoto Services from an authorized third party, and therefore you may not have all of the Site's capabilities or sharing capabilities described. You may share your Animoto Videos hosted on the Site by (a) downloading the video file from Animoto's site for use within the Scope of Use, if such functionality is available, or (b) using Animoto's video player code to play your video in your own website or web page for use within the Scope of Use. Animoto Videos used for commercial purposes must only be used within the Scope of Use within the applicable Term. You agree that you will not modify the video player code in any way, nor will you modify the display of your Animoto Video.

You may also share your Animoto Videos hosted on the Site by emailing or otherwise sharing the link associated with your Animoto Video. You may also share your Animoto video by downloading it to a storage device, personal computer, or mobile device.

Commercial Users may not use or share Animoto Videos for any unauthorized or illegal advertising or promotional materials, such as junk mail, spam, chain letters, or pyramid schemes.

Your right to link to the Site is expressly conditioned upon your compliance with the following restrictions:

  1. The link must either resolve to the homepage, "animoto.com," or to the link associated with an Animoto Video.
  2. The link may not use, defame, or tarnish any logo, graphic, tagline, service mark, trademark, or copyrighted information of Animoto or any other third party.
  3. The link and surrounding materials must not deliver the Site content in a framed environment, or alter the layout, content, look, or feel of the Site.
  4. The link and surrounding materials must not imply affiliation or falsely represent any relationship between the linking site and Animoto; and
  5. The link and surrounding materials must not portray Animoto, Animoto Videos or services available on the Site, or the Site itself, in a false, misleading, derogatory, defamatory or otherwise offensive manner.

Third Party Sites and Information

Our Site may include links to other sites on the Internet, or be accessed from other sites on the Internet or mobile applications, that are owned and operated by online merchants and other third parties, and which may contain references to information, software, materials, products, and/or services provided by the third party. These third party sites may contain information that some people consider inappropriate or offensive. You acknowledge that these third party sites are beyond our control, and we are not responsible for the availability of, or the content located on or through, any third-party site. You should contact the site administrator or web-master for those third-party sites if you have any concerns regarding such links or the content located on such sites. Your use of those third-party sites is undertaken at your own risk, and is subject to the terms of use and privacy policies of each site. We include third party links or references merely as a convenience to our Commercial Users and/or Users, and we do not endorse nor assume any liability for the third party websites, services, or products.

Intellectual Property

  1. Animoto's Intellectual Property Rights. Animoto is the owner and retains all proprietary rights to the Site, the services provided by the Site, and all associated copyrights, trademarks, brands, service marks, patents or other proprietary rights under law. You are permitted to use the Site and its content only as specifically authorized by us. As a Commercial User, subject to your payment of the applicable Fees and your compliance with these Terms of Service, you are granted a limited, non-exclusive, revocable, non-transferable right to use the Site to create, display, use, play, download (if made available by Animoto) Animoto Videos within the Scope of Use and during the Term.

    Your license to display an Animoto Video is conditioned upon the display, each time the Animoto Video is used for commercial purposes, of any of the following which may be contained in the Animoto Video: Animoto's trademarks, logos, icons or notices. Furthermore, your use of the Site and Animoto Videos is expressly conditioned upon your agreement to (i) refrain from taking any measures to inhibit display of Animoto's trademarks, logos, icons, or notices, if such items are contained in the Animoto Video; and (ii) refrain from removing or modifying any Animoto trademarks, logos, icons, or notices which may be contained in the Animoto Video. Inhibiting display of, removing, or modifying Animoto's trademarks, logos, icons or notices from your Animoto Video will be considered a material breach hereof.

    Animoto's trademarks and/or service marks may not be used in connection with any product or service that is not provided by Animoto, in any manner that is likely to cause confusion among customers or users of the Site, tarnishes or dilutes the marks, or disparages or discredits Animoto.

    Animoto's software and services available on the Site are the subject of pending patent application(s), and you are granted a limited right to use such software and services only in conjunction with the Site and in accordance with these Commercial Terms of Service.

  2. Others' Intellectual Property Rights. Animoto deeply respects the third party intellectual property rights that may be implicated in creating an Animoto Video. These intellectual property rights, and your responsibilities with respect to these rights, are outlined below.

    In creating an Animoto Video using Animoto's proprietary software, you will be able to use your own Image Content such as photos, graphics, text, or video segments. The Site may allow Commercial Users to upload their own Musical Content or to use Musical Content provided by Animoto for creating your Animoto Video.

    Both the Image Content and Musical Content have associated intellectual property rights as described further herein. You retain any and all rights you hold with respect to Image Content and Musical Content.

    Image Content may be protected by copyright, even if not marked with the © symbol. If you are not the creator of Image Content, then you must get permission from the creator of the Image Content or the copyright holder to use the Image Content in an Animoto Video. For example, professionally-taken photographs should not be used in an Animoto Video unless you have received permission from the photographer to do so. As another example, professionally-produced video clips, such as clips of TV shows or movies, should not be used in an Animoto Video unless you have received a license to do so from the owner of the copyright.

    Furthermore, if you want to publish Image Content of someone other than yourself, you must get permission from the individuals portrayed in the Image Content before using the content in an Animoto Video. Do not upload any Image Content that is confidential or proprietary. We assume no liability with respect to the disclosure or use of confidential or proprietary information uploaded to the Site.

    Musical Content that is not an original creation by you is also protectable under copyright laws. Copying music without purchasing or obtaining the rights to the music is against the law. When you upload your own Musical Content, you must be sure that you have the permission to use such Musical Content in an Animoto Video prior to doing so. If you are unsure as to whether you have the permission to use Musical Content within the Scope of Use, then you should use Musical Content made available to you for commercial purposes by Animoto.

    You warrant that all Content, including Image Content and Musical Content, uploaded by you, either from your own computer or another website/server, is either created and owned by you, or you have the necessary licenses, rights and permissions to (a) use the Content to create and display an Animoto Video as you intend and within the Scope of Use; (b) use the Content as contemplated by the Site and your Scope of Use, and (c) to grant Animoto the rights described herein. Please be aware that your use of the Content may be interpreted as a use for commercial purposes pursuant to copyright laws. Even if you believe you have certain rights to use third party Content, you should ensure that you have the appropriate rights to use such Content for commercial purposes and within the Scope of Use. We cannot, and do not intend to, provide you legal advice or assistance regarding acquisition of appropriate intellectual property rights. If you are unsure as to whether you have the appropriate rights to use the Content within your Scope of Use, you should consult an attorney.

    You hereby grant to Animoto a royalty-free, perpetual license to use, copy, create, modify, display and host your Animoto Video, Image Content, and Musical Content solely to the extent necessary for Animoto to provide the Services as described herein.

    All trademarks and/or service marks displayed on the Site are the exclusive property of their respective owners, and may not be used without the owner's permission.

  3. Notice of Copyright or Intellectual Property Infringement. Please notify us if you believe any of your intellectual property rights have been infringed by a Commercial User or User of the Site. Pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act ("DMCA"), Animoto designates the following individual as its agent for receipt of notifications of claimed infringement:

    By Mail:

    Animoto Inc.
    c/o Laura Lee Norris, Attorney at Law
    Attn: DMCA Claims
    101 Church Street, Suite 17
    Los Gatos, CA 95030
    By E-mail: laura@corporate-gc.com

    To be effective the notification should include: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the right being infringed; (b) identification of 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 the site; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity, and Information sufficient to permit us to locate the material; (d) information sufficient to allow us to contact the complaining party; (e) a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright or intellectual property owner, agent, or the law; and (f) 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 the right being infringed. If you fail to comply with all of these requirements, your DMCA notification may not be valid.

    You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove or disable the identified materials from our site without liability, and the claims of the complaining party and party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.

Repeat Infringers

Your account will be terminated if, at Animoto's sole discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.

Purchase of Products

Animoto may, from time to time, provide the ability for its users to place an order ("Order") for products relating to Animoto Videos, such as a DVD ("Products"). You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices for Products in effect when such charges are incurred. Verification of information applicable to an Order may be required prior to our acceptance of any Order. Price and availability of any Products are subject to change without notice, and our current prices can be found on the Site.

All prices are in U.S. dollars. Prices do not include delivery charges or any import duties that may be added by the Order destination country. Delivery charges will be added to your Order during the checkout process. You will also be responsible for paying any applicable taxes relating to your Order. Any dates specified for delivery of any Products are intended to be an estimate only.

Title and risk of loss for any Orders pass to you upon our delivery of Products to our carrier. When you place an Order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders, and the portion of any order that is partially shipped may be charged at the time of shipment.

Limited Warranty for Products

Animoto provides a limited warranty to you that, within a thirty (30) day period after delivery, Products provided to you by Animoto shall be free from defects in materials, design and workmanship. If a Product is found to be nonconforming with this warranty within the thirty (30) day period following delivery of the Product, then you shall have the right to request a replacement Product as set forth below.

Note that this limited warranty does not in any way cover your dissatisfaction with the quality of the Animoto Video arising from or relating to the content uses to create the Animoto Video.

Warranty Claims

Products which do not conform to Animoto's limited warranty provided for herein will be replaced within thirty (30) days of delivery. No credits or refunds will be given. Replacement is your sole and exclusive remedy for any breach of such warranty.

If you would like to make a warranty claim for a replacement product, send an email to:

customercare@animoto.com

You will receive a response email with instructions on processing your warranty claim.

Disclaimer of Warranties

ALL SERVICES ON THIS SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.

WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY MATERIALS OR SERVICES OBTAINED BY YOU FROM THE SITE, FROM US, OR FROM ANY THIRD PARTIES’ WEBSITES TO WHICH THE SITE IS LINKED, WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.

THE USE OF THE SERVICES, THE UPLOADING OF IMAGE CONTENT AND/OR MUSICAL CONTENT, OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS OR CONTENT THROUGH THIS SITE OR THROUGH THIRD PARTIES' WEBSITES TO WHICH THE SITE IS LINKED, IS DONE AT YOUR OWN RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.

OTHER THAN AS EXPRESSLY SET FORTH IN THE PARAGRAPH HEREUNDER ENTITLED "LIMITED WARRANTY FOR PRODUCTS," ANIMOTO EXPRESSLY DISCLAIMS AND PROVIDES NO OTHER WARRANTIES FOR PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT.

ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

YOUR EXCLUSIVE REMEDY AND ANIMOTO'S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE SITE SHALL BE LIMITED TO THE AMOUNT YOU PAID ANIMOTO, IF ANY, FOR ANY PRODUCTS AND/OR SERVICES AVAILABLE THROUGH THE SITE DURING THE SIX-MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY.

IN NO EVENT SHALL ANIMOTO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THE SITE.

FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE SITE OR THROUGH THIRD PARTY WEBSITES LINKED TO FROM THE SITE.

YOU ARE SOLELY RESPONSIBLE FOR MAKING BACKUP COPIES OF ANY AND ALL OF YOUR IMAGE CONTENT AND MUSICAL CONTENT. ANIMOTO SHALL NOT BE LIABLE FOR ANY LOSS OF OR DAMAGE TO YOUR IMAGE OR MUSICAL CONTENT.

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification

You agree to indemnify and hold Animoto, its parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use or misuse of the Site, (b) the public performance, distribution, sharing, displaying or viewing of your Content or Video, (c) the violation of laws, rules, regulations or terms of this Agreement, or (d) infringement by your Content, by you, or by someone using your account, of any intellectual property or any other right of any person or entity. Animoto reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Animoto in asserting any available defenses. This indemnification section survives the expiration of your commercial license Term, and applies to claims arising both before and after the Term.

Use of Site and Storage of Material

Your usage of the Site will be limited to the Scope of Use for which you have paid Animoto the Fees, for the applicable Term. If Animoto believes that you have exceeded your Scope of Use or the Term, Animoto reserves the right to convert your account to a Lite User account or terminate your account without prior notice to you.

Upon registering, you will be assigned one (1) user account. Animoto limits the maximum amount of disk space per account for storing Animoto Videos and Commercial User content to 1 Gigabyte. You may be given an opportunity to purchase from Animoto additional storage space. Payments for such purchases are nonrefundable.

You agree that we have no responsibility or liability for the deletion or failure to store any content maintained or transmitted on or through this site. The accounts of our Commercial Users operate on shared resources. Excessive use or abuse of these shared network resources by one Commercial User may have a negative impact on all other users. Misuse of network resources in a manner that impairs network performance, including excessive consumption of CPU time, memory, disk space, and session time, is prohibited. You acknowledge that we have the right, at our sole discretion, to terminate your account, limit the number of transmissions you may send or receive through our site, or limit the amount of storage space, bandwidth, or other resources you may use.

You acknowledge that we reserve the right to convert any Commercial User account to a Lite User account upon non-receipt of a Fee. Furthermore, we reserve the right to terminate any Lite User account with no prior notice to you, including the deletion of any videos and content associated therewith, if the account has been inactive for a twelve (12) month period.

Do not rely upon the Site as a primary storage space for your content. You should preserve backup copies of any digital data, information or other materials that you have uploaded.

International Use

Although the Site may be accessible worldwide, we make no representation that materials on the Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access this site from outside the United States do so on their own initiative and are responsible for compliance with local laws. In addition, this Site and the Services provided under this agreement may be subject to United States export control regulations or the export control regulations of other countries. You agree to comply strictly with all export control laws, and assume sole responsibility for obtaining licenses to export or re-export as required.

Termination of Use

We may terminate or suspend your use of the Site at our discretion and for any reason. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your account and may be referred to appropriate law enforcement authorities.

Upon termination or suspension, regardless of the reasons therefore, your right to use the services available on the Site immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Site. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection therewith.

The following sections of these Commercial Terms of Service will survive termination: Third Party Sites and Information, Distribution Terms, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, Indemnification, Termination of Use, Governing Law, Miscellaneous.

Governing Law

The laws of the state of California, USA, will apply to all matters relating to these Commercial Terms of Service, the use of the Site and/or services provided through the Site, without regard to the conflicts of laws principles nor the United Nations Convention on the International Sale of Goods. You agree to submit to the exclusive personal jurisdiction and venue of the United States District Court, Northern District of California in San Francisco, California USA.

Notices

All notices to a Commercial User or to Animoto shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at contact@animoto.com, if by email, or at Animoto, Inc., 333 Kearny Street, San Francisco, California 94108 USA, if by conventional mail. Notices to you may be sent to the email address supplied by you when registering or updating your account. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you.

Any notices or communication under these Commercial Terms of Service will be deemed delivered to the party receiving such communication (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by facsimile; (5) on the delivery date if transmitted by email; or (6) immediately if broadcast by Animoto.

Miscellaneous

If any provision of this Agreement shall be unlawful, void or unenforceable for any reason, the other provisions shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent.

You agree that this Agreement may be assigned by Animoto, in our sole discretion, to any third party at any time. You may not transfer or assign any of your rights and obligations under this Agreement, and any attempt to do so will be null and void.

This Agreement, together with the (non-commercial) Animoto's Site Terms of Service and the site Privacy Policy, shall constitute the entire agreement and understanding between us concerning the subject matter hereof and supersedes all prior agreements and understanding of the parties with respect thereto. To the extent the terms of this Agreement are inconsistent with Animoto's Site Terms of Service, applicable to all Users of the Site, the terms of this Agreement shall prevail.

Any attempt to modify or supplement the terms of this Agreement, the Site Terms of Service, and/or the Privacy Policy shall be null and void unless agreed to in writing signed by both parties.

Any failure by us to enforce or exercise any provision of these Commercial Terms of Service or related rights shall not constitute a waiver of that right or provision.

In any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees.

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