You must read and agree to this Terms of Service Agreement ("Agreement") if you are a User of Animoto's website at https://animoto.com, Animoto’s mobile application (“Mobile App”) or Animoto’s video creation services made available through authorized third party websites (collectively referred to as the “Site” or “Services”).
You acknowledge and agree that, by (1) clicking the “I Agree” or similar button to access the Services, or (2) downloading an Animoto application or (3) otherwise accessing or using the Services, you have read these terms and agree to these terms. If you do not agree with these terms, you must immediately cease all use of the Services and un-install any application from your hardware.
You acknowledge that these Terms are between You and Animoto, and not with any third party from which you obtained the Services, and such third party (called a “Provider”) is not responsible for the Services nor their content. Provider has no obligation whatsoever to furnish any maintenance or support services with respect to the Services. However, You agree and acknowledge that Provider is a third party beneficiary of these Terms, and that upon Your acceptance of these Terms, Provider will have the right (and will be deemed to have accepted the right) to enforce these terms against You as a third party beneficiary thereof. Your use of the Services is not only subject to these Terms of Service, but also any terms of service and/or rules of such third party site.
There are two general types of Users of the Services, registered users that have registered with Animoto or who have registered 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. Registered Users who pay fees in order to use the Services for commercial purposes are referred to as “Commercial Users.” The term "commercial purposes" shall mean any use of an Animoto video that directly or indirectly derives a commercial benefit or financial gain.
There are two types of Commercial Users: (1) Animoto “Professional” (formerly known as "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) Animoto “Business” (formerly known as "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 13 years of age or older to be a User of the Services. You must be 18 years of age or older to be a Commercial User. By continuing to use the Services, you are warranting that you are at least 13 years old if you are using the Services to make Animoto Videos for personal use, and that you are at least 18 years old if you are using the Services to make Animoto Videos for commercial purposes. You further warrant that you have the authority to enter into these Terms of Service.
This Terms of Service Agreement was last updated on August 9, 2018. We reserve the right, at any time, to modify the Services and/or the terms of this Agreement without prior notice. We recommend that you check these Terms of Service periodically to see if there have been any modifications. Modifications will become effective immediately upon being posted on the Site. Your continued use of the Services after modifications are posted will be considered an acceptance of the modified Terms of Service.
The Services are owned and operated by Animoto Inc., a California Corporation with a place of business at 333 Kearny Street 6th Floor, San Francisco, CA 94108 USA. The Animoto Services provide Users with the ability to have a video ("Animoto Video") automatically created by Animoto using uploaded photographs, graphics, or video clips ("Image Content") set to a selected or uploaded music track ("Musical Content").
By registering with us, you agree that all information provided to us is true and accurate and you will keep it current. During the registration process, you will be asked to select a password. The password and your account are for your individual use only, and are not to be shared with coworkers, friends or family. Commercial User accounts may be shared with up to two (2) other users within your organization, but you remain responsible for all activities relating to your account. You agree to keep your password confidential at all times and notify Animoto immediately if you learn of an unauthorized use of your password. You are fully responsible for activities or transactions that relate to your account or your password.
Payment of Fees
If you are a paid User, you agree to pay all per-use fees or fees associated with your subscription, as appropriate ("Fees"). Animoto may provide you with the ability to pay the Fees through a 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 or your use of the Site.
If, for any reason, your payment is not received by Animoto, your paid User account will revert to a free User account until payment is received by us. You agree that until your paid User account subscription is terminated or expires, you will continue to remain responsible for the subscription payments, even if you do not use our service. Subscription payments are nonrefundable.
You agree to obey all applicable rules and regulations in using the Services, 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 (collectively, "Submissions").
You will not modify, create derivative works of, decompile or otherwise attempt to extract source code from us. You agree that you will not upload, share, or otherwise distribute any Submissions that:
- are unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, or impersonate another person;
- 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;
- victimize, harass, degrade, or intimidate an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
- infringe on any patent, trademark, trade secret, copyright, right of publicity, or other right of any party;
- constitute unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- 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;
- 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
- are to be used for a commercial purpose of any kind, unless you are a Commercial User.
We do not endorse the contents of any 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 Terms of Service and any other rules of user conduct, or is otherwise harmful, objectionable, or inaccurate. We are not responsible for any failure or delay in removing such content.
If you would like to notify us of content which you believe does not comply with these Terms of Service, please fill out our feedback form. 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 Services, you may be exposed to materials that are objectionable as set forth above. 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 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 Terms of Service. In addition, you acknowledge that we will cooperate fully with investigations by law enforcement authorities.
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 sharing capabilities described. Animoto Videos may only be used for personal, non-commercial, uses, unless you are a Commercial User. You agree that you will not modify Animoto video player code in any way, nor will you modify the display of your Animoto Video.
Your right to link to the Animoto Site is expressly conditioned upon your compliance with the following restrictions:
- The link must either resolve to the homepage, " animoto.com," or to the link associated with a User Video.
- 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.
- 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.
- The link and surrounding materials must not imply affiliation or falsely represent any relationship between the linking site and Animoto; and
- 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
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. Copying, distributing, modifying, or creating derivative works of Animoto’s Services without Animoto's written permission is strictly prohibited.
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 Services include a user interface that allows you to upload user content and customize certain aspects of your desired Animoto Video. You are granted a limited right to use those services only in conjunction with the Site and in accordance with these Terms of Service. Your inputs are then handed off to Animoto’s proprietary video creation engine, which automatically creates the Animoto Video. Users do not have direct access to the video creation engine and therefore you receive no license to use it. Animoto’s Services (including its user interface and video creation engine) are Animoto’s intellectual property, and the subject of pending and issued patent applications.
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. You will be able to either upload your own Musical Content, or select Musical Content available from Animoto. 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 our Site.
Animoto licenses certain Image Content in the form of photos and/or video clips from third parties (“Licensed Images”) and makes that content available to its users for use in making Animoto Videos. Ownership of all intellectual property rights in Licensed Images remains with the third party licensor, and you are granted a limited right to use such Licensed Images subject to these terms. Your use of Licensed Images is subject to the following restrictions:
- You may only use and modify Licensed Images in connection with making an Animoto Video via the Services, and may only copy, distribute, or display the Licensed Images as incorporated within the Animoto Video, and only in digital form.
- You receive no right to use the Licensed Images except in connection with the Services, and no right to copy, distribute, or display Licensed Images separately from the Animoto Video.
- If a Licensed Image featuring an individual(s) is used in connection with a sensitive, unflattering or controversial subject, you agree that you must include a statement that the image is used for illustrative purposes only and the individual is a model.
- You are not permitted to activate the “right click” function in Licensed Images, remove any metadata in Licensed Images, or reverse engineer, decompile or disassemble the Services to enable the download or use of Licensed Images on a stand alone basis.
- Licensed Images may not be used:
- on a stand-alone basis with no other content;
- for pornographic, defamatory or other unlawful purposes;
- in electronic templates used to create electronic or printed products;
- in physical or digital retail products other than permitted Animoto Videos created through the Services, such as e-cards, calendars, posters, or screensavers;
- for the purpose of enabling file-sharing of the image file; or
- in logos, trademarks, services marks or any other branding or identifiers, separate from the Animoto Videos created through the Services, provided you acknowledge you shall receive no trademark protection for the Licensed Images themselves.
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. Prior to uploading your own Musical Content, you must be sure that you have the permission to use such Musical Content in an Animoto Video. If you are unsure whether you have the necessary rights to use music in an Animoto Video, we encourage you to choose Musical Content available through Animoto. You agree that you will not alter or modify the fundamental character of any music available through Animoto or third party sites linked to by our Site.
You may want to search for Musical Content or Image Content through the Creative Commons.
You warrant that all Image Content and Musical Content uploaded by you, either from your own computer or another Site/server, is either created and owned by you, or you have the necessary licenses, rights and permissions to use the Image and/or Musical Content as you intend to use them and as contemplated by the Site and grant Animoto the rights described herein. Unless you are a Commercial User, all use of the Site is limited to personal, non-commercial purposes only.
If 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. 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").
Please be aware that if you are a Commercial User, your use of Content may also be considered a use for commercial purposes pursuant to copyright laws. Even if you believe you have certain rights to use third-party Content in an Animoto Video, 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.
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.
Open Source Licenses. The Mobile App available from Provider uses open source software that is distributed to you in executable form if you download the Animoto application. A list of the open source software, and link to the applicable open source terms, which are contained within the Mobile App can be found at
You understand and acknowledge that each open source license is a separate agreement between You and the copyright holder of such open source software, and Animoto is not a party to any such open source license. Your use of the Animoto application must comply with terms of the applicable open source licenses.
Notice of Copyright or Intellectual Property Infringement. Please notify us if you believe any of your intellectual property rights have been infringed by a 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:
Animoto Inc. c/o Laura Lee Norris, Attorney at Law
Attn: DMCA Claims
6081 Meridian Avenue, Suite 70-151
San Jose, California 95120
By E-mail: email@example.com. This email is for infringement notifications only! Please email firstname.lastname@example.org for customer service inquiries.
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 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.
If you believe that your video has been removed in error, you may submit a counter-notification in compliance with DMCA. To be effective, the counter-notification must include: (a) your physical or electronic signature, (b) identification of your material that has been disabled, and the location of the material before it was removed, (c) a statement under penalty of perjury that you have a good faith belief that your material was disabled as a result of mistake or mis-identification of the material, and (d) your name, address, and telephone number, and a statement that says you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (if in the United States), or if your address is outside of the United States, for any judicial district in which the Animoto may be found, and that you agree to accept service of process from the complaining party, or an agent of such person.
Animoto, and not any Provider, is solely responsible for the investigation, defense, settlement, and discharge of any intellectual property infringement claim relating to the Services or an Animoto Video.
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.
Disclaimer of Warranties
ALL ANIMOTO SERVICES, INCLUDING WITHOUT LIMITATION OPEN SOURCE SOFTWARE, AND THE 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.
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 THE SERVICES OR THROUGH THIRD PARTIES' OR PROVIDER’S WEBSITES, 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.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Third party Providers of Animoto’s Mobile App have no warranty obligation to You. To the extent that Animoto has not effectively disclaimed warranties relating to the Services, or the limitations set forth above do not apply to You, your sole remedy for breach of warranty shall be to notify the Provider of the nonconformity, and such Provider may (depending on its policies and practices) refund the purchase price for the Services, if any.
Limitation of Liability
YOUR EXCLUSIVE REMEDY AND ANIMOTO'S AND PROVIDER’S ENTIRE LIABILITY, IF ANY, FOR ANY CLAIMS ARISING OUT OF THE SERVICES SHALL BE LIMITED TO THE AMOUNT YOU PAID ANIMOTO, IF ANY, DURING THE SIX-MONTH PERIOD BEFORE THE ACT GIVING RISE TO THE LIABILITY (OR, IF NO SUCH AMOUNT WAS PAID, $1.00 USD).
IN NO EVENT SHALL ANIMOTO OR PROVIDER 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 SERVICES.
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.
You agree to indemnify and hold Animoto, Provider, and each of its respective 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 or Services, (b) the viewing of your content or video, (c) the violation of laws, rules, regulations or terms this Agreement, (d) your failure to comply with Animoto’s terms of service or other terms of any open source licenses, if applicable,(e) 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.
Use of Site and Storage of Material
Upon registering with Animoto, you will be assigned one (1) user account. You are limited to one account per person. Animoto limits the maximum amount of disk space per account for storing Animoto Videos and User content to 1 Gigabyte. You may be given an opportunity to purchase 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 the Services. The accounts of our Users operate on shared resources. Excessive use or abuse of these shared network resources by one 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 Paid User account to a Free User account upon non-receipt of a subscription fee. Furthermore, we reserve the right to terminate any Free 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 Services as a primary storage space for User content. You should preserve backup copies of any digital data, information or other materials that you have uploaded.
Storage of Commercial Users’ Materials
If you are a Commercial User, 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.
Although Animoto’s Services may be accessible worldwide, we make no representation that the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. You agree to comply strictly with all export control laws, and assume sole responsibility for obtaining licenses to export or re-export as required. You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Termination of Use
We may terminate or suspend your use of the Services 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 immediately ceases, and we may immediately deactivate or delete your account and all related information. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension.
The following sections of these Terms of Service will survive termination: Third Party Sites and Information, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, Indemnification, Termination of Use, Storage of Commercial User’s Materials, Referral Program, Distribution Terms – Commercial Users, Audit Rights – Commercial Users, Governing Law, Agreement to Arbitrate All Disputes, Miscellaneous.
Animoto may offer a referral program, whereby an incentive is offered to a user ("Referrer") who refers another user to Animoto. Animoto reserves the right to discontinue, terminate or modify the referral program at any time. Credits or incentives awarded to a Referrer are not transferable, and have no cash value. Referrers are not agents of Animoto, and are not authorized to make any commitment on behalf of Animoto. Animoto is not responsible for the conduct of Referrers, and Referrers agree to hold Animoto harmless from and against any claims arising from Referrer's conduct.
Referrals to the Services are subject to the Linking Conditions. In addition, Referrers may only refer to the Site using the items provided by Animoto for such purpose ("Animoto Referral Assets"). Referrers may not alter or modify the Animoto Referral Assets in any way.
Referrer's participation in any Animoto referral program is expressly conditioned upon Referrer's agreement and compliance with the following:
- Referrer may not place Animoto Referral Assets in third party newsgroups, message boards, blogs, unsolicited email and other types of spam, link farms, counters, chat rooms, or guest books. Referrer may only place Animoto Referral Assets on Referrer's Site as specified by Referrer and approved by Animoto upon application to the referral program.
- Referrer represents and warrants that (i) it will not mislead Users in any way, (ii) it shall not cause any transactions to be made that are not bona fide transactions initiated by User, including, but not limited to, using any device, program, robot, Iframes, or hidden frames.
- Referrer understands that it will not earn any incentive where Referrer or Referrer's owner, employee, agent, contractor, affiliate, or partner is a User. Furthermore, Referrer may not earn any incentive, at Animoto's discretion, for multiple transactions from the same individual, entity or IP address.
- Referrer represents and warrants that none of its promotional activities will infringe the proprietary rights of Animoto nor third parties, Referrer will at all times during its participation in the referral program, comply with all applicable laws, rules, and regulations
- Referrer represents and warrants that all promotional means used by it will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services or activities).
- Referrer represents and warrants that it will not engage in and/or facilitate spamming, indiscriminate advertising or unsolicited commercial email or otherwise fail to comply with any laws and/ or regulations that govern email marketing and/or communications.
- Referrer represents and warrants that it will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by Referrer's Site content /site visit or by downloadable software applications for which Referrer is the owner/operator. Pop up/unders delivered through downloadable software cannot engage in means that force clicks or perform redirects, or pop over a pay-per-click listing or natural search results.
- Referrer represents and warrants that it will not collect personally identifiable information of Users that would allow Animoto to personally identify Users.
- Referrer agrees to indemnify, defend, and hold harmless Animoto and its parents, subsidiaries, affiliates, officers and employees, harmless from any liabilities, claims, expenses or demands, including reasonable attorneys' fees and costs, made or alleged by any third party due to or arising out of Referrer's Site or Referrer's breach of its warranties and representations hereunder.
Any failure to comply with the above or using unapproved methods of referring third parties to the Site, including without limitation delivering the Animoto Site content in a framed environment, is a violation of this Terms of Service, will not result in a credit or incentive to Referrer, and may result in a termination or suspension of Referrer's Animoto account at Animoto's discretion.
Distribution of Animoto Videos by Professional Account Holders
Commercial Users with a Professional (or “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, Professional 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 financial 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 Business Account Holders
If you have obtained a Business (or “Pro Premium” or "Reseller") Subscription from Animoto, then the following terms shall apply to you (a "Reseller"):
- During the applicable term of the Business 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.
- 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.
- Reseller agrees to promptly provide to Animoto any and all reasonably requested information sufficient for Animoto to verify Reseller's compliance with these terms.
- 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 – Commercial Users
In distributing Animoto Videos to third parties, both Professional and Business Commercial Users must obtain the third party's agreement to the below Distribution Terms (a)-(g). In addition, Professional 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.
- 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.
- 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.
- 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.
- You may not modify the Video in any way.
- 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.
- 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.
- 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.
- 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 – Commercial Users
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 Commercial User’s information to determine compliance with the terms contained herein. The costs of such audit shall be borne by Animoto unless the audit uncovers that the Commercial User has materially breached this Agreement, and then Commercial User shall be responsible for reimbursement of all reasonable costs and expenses of such audit.
Data Processing Terms – Commercial Users
These Data Processing Terms only apply if (a) you have obtained a Professional or Business subscription with Animoto, and (b) your use of Animoto Services involves collecting Personal Data from data subjects that are residents in the European Economic Area or Switzerland (collectively referred to as “EU Residents”) and/or incorporating that Personal Data in Animoto Videos or otherwise sharing the Personal Data with Animoto.
Animoto considers the issues of privacy and data security to be of utmost importance.
Definitions For Purposes of These Data Processing Terms.
The term “data subject” means the identified or identifiable person to whom any Personal Data relates.
The term “Personal Data” means ANY information that: (i) can be used, alone or in connection with other information, to identify an individual; or (ii) is otherwise subject to any applicable privacy or data laws regarding personal information. For avoidance of doubt, Personal Data includes an individual’s name and likeness, including in photographs or video.
The term “processing” means any action performed on Personal Data, including by automated means, such as collecting, recording, organizing, structuring, storing, altering, retrieving, modifying, using, disclosing, transmitting, or deleting.
You are the “Data Controller” and Animoto is the “Data Processor” for purposes of any applicable data privacy laws, including without limitation the EU Directive 95/46/EC, the EU General Data Protection Regulation 2016/679 (the “GDPR”), and the EU-US Privacy Shield Framework.
You hereby represent and warrant that (a) your collection of Personal Data from EU Residents will be in compliance with your own privacy statement, to which you will receive express consent by data subjects; (b) You will comply with all applicable laws, rules and regulations in using the Animoto Service, including without limitation data protection regulations and laws relating to Personal Data such as the GDPR; and (c) You agree to immediately inform Animoto of a request by a data subject to delete Personal Data.
Animoto agrees that it will:
- process Personal Data in accordance with documented instructions from You, including with regard to transfers of Personal Data to a third country or an international organization, unless required to do so by applicable law, in which case it will inform You to the extent permitted by law;
- ensure personnel authorized to process the Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality, and that such personnel do not process any Personal Data except in accordance with Your documented instructions;
- implement appropriate technical and organizational measures to ensure the security of any Personal Data, taking into account the risks that are presented by the processing;
- ensure that third party sub-processors engaged by Animoto are subject to the same data protection obligations set forth in these Data Processing Terms, and Animoto will be responsible for sub-processors’ performance under such obligations;
- taking into account the nature of the processing, assist You by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Your obligation to respond to requests made by data subjects pursuant to applicable law;
- taking into account the nature of the processing, assist You in meeting Your obligations under applicable law, including without limitation those arising pursuant to Articles 32 to 36 of the GDPR (relating to data security, breach notification, and impact assessments); and
- at Your written request, no more than once per year unless otherwise required under applicable law, make available to You all information necessary to demonstrate Animoto’s compliance with its obligations under these terms and/or permit audits to verify such compliance (to this end, You consent to Animoto engaging a reputable independent auditor of its choice to conduct such audits in lieu of You or Your designee);
- at Your request, delete or return to You all Personal Data in Animoto’s possession or control after the end of the provision of Services relating to processing, and delete existing copies unless applicable law requires storage of such Personal Data. Notwithstanding the foregoing, You acknowledge that Animoto Videos may be downloaded and/or shared on sites and platforms and may not be hosted on Animoto’s or its vendors’ servers. As such, Animoto may not be able to fulfill a request to delete Personal Data of a data subject contained in an Animoto Video that has been downloaded and/or distributed in such a manner.
The laws of the state of California, USA, will apply to all matters relating to these Terms of Service and the Services 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.
Agreement to Arbitrate All Disputes
Nothwithstanding anything contained herein, you agree that any legal disputes arising out of or relating to these Terms of Service or the Services shall be submitted to binding arbitration in San Francisco, California USA. The arbitration shall be conducted by the American Arbitration Association under its Commercial Arbitration Rules. Any judgment on the award by the arbitrator may be entered in a court having jurisdiction thereof. You agree that any claim, action or proceeding arising out of or related to these Terms of Service or the Services must be brought in your individual capacity, and not as a plaintiff or class member in any purported representative or class proceeding. The arbitrator may not consolidate more than one person’s claims. YOU ACKNOWLEDGE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING.
All notices to a 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 email@example.com, if by email, or at Animoto, Inc., 333 Kearny Street 6th Floor, San Francisco, CA 94108 USA, if by conventional mail. Notices to you may be sent either to the email address supplied for your account or to the 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 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.
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.
If you are a California resident, California Civil Code Section 1798.83 permits you to request information regarding the disclosure of your personal information to third parties for the third parties’ direct marketing purposes.
Any failure by us to enforce or exercise any provision of these 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.
This document was last updated on August 9, 2018.