somtom.net, Somtom Media (hereafter “Somtom”) contracts with copyright holders to give them an avenue to share and license their content with media outlets, TV shows, commercials, films and other commercial outlets that utilize viral-style video clips for their programming needs. Somtom brings content holders and the market of purchasers together so that video creators can be compensated for the licensing of their videos, and so industry professionals have a simple process for accessing the videos they need for programming. Subject to our Terms of Service, videos uploaded to Somtom are made available for licensing by industry professionals and in return content holders can be compensated for their videos. It is our goal to help owners of videos get compensated and for industry professionals to get the videos they need for their programming in an efficient and affordable manner.
Use of the Website
The site and any Content available for licensing via the site or from Somtom are intended to be accessed and utilized by customers and registered users of Somtom. You are specifically prohibited from: (i) copying or re-transmitting any portion or the entire Website; (ii) downloading and/or using any of the Content available from Somtom without a valid license agreement with Somtom or absent other agreements between Somtom and Platform service customers; or (iii) manipulating or otherwise displaying the site or any Content available from the site or Somtom by using framing or other navigational technology. You are also prohibited from using any data mining, automated, robotic or similar data aggregation or extraction methods or technologies on or in connection with this site. Any unauthorized use of this site, the Platform, or any Content available from this site or Somtom may violate applicable copyright and trademark laws, right of privacy or right of publicity, and/or other proprietary rights and applicable federal, state and local laws, rules, orders or regulations, which shall entitle Somtom to take action against you, your employer or principal including, without limitation, seeking injunctive relief, as well as damages in the form of actual damages for loss of income, profits derived from the unauthorized use and, where appropriate, attorneys’ fees, other costs of collection, and/or statutory damages.
Ownership of Site
All sounds, music, video, text, software, user interfaces, visual interfaces, graphics, photographs, artwork, trademarks, logos, computer codes and other audio-visual material (collectively, “Content”) contained on the Site, including but not limited to the design, structure, coordination, selection, expression, and arrangement of such Content, is controlled, owned, or licensed by or to Somtom, as further set forth in these Terms of Service, and is protected by copyright, trademark and various other intellectual property and unfair competition laws.
Somtom.net, Somtom Media, its graphics, logos and service names are registered or otherwise protected trademarks or service marks (“Trademarks”). These Trademarks many not be used in connection with any product or service that is not owned or operated by Somtom or in any manner that is likely to cause confusion among customers or in any other manner that disparages or misrepresents Somtom. All other trademarks, branding and logos not owned by Somtom that appear on this Site are the property of their respective owners who may or may not be affiliated with, sponsored by or connected to Somtom.
No part of the Site nor its Content may be used in any way, except as expressly provided in these Terms of Service, without Somtom’s express prior written consent, including without limitation the copying, publicly display, reproduction, republishing, posting, uploading, transmitting, or distributing in any method or manner to any other device, computer, web site or other platform or medium. The unauthorized copying and distribution (including without limitation downloading, uploading, file serving, file “swapping” or other similar activities) of any such Content or materials constitutes copyright infringement under the U.S. Copyright Act and international copyright laws, and Somtom and its third party licensors and affiliates will enforce such rights to the full extent of the law.
Somtom reserves the right to do any of the following, at any time, without notice: (1) modify, terminate, or suspend access to the Site, or any portion of the Site, for any reason; (2) modify or change any portion of the Site, and any applicable policies or terms; and (3) interrupt the operation of the Site as necessary to perform routine or non-routine maintenance, error correction, technical updates or other changes.
License to Use Site
Agreement to Terms of Service
These policies are applicable to the web site located at www.somtom.net, the company Somtom Media and each of their respective affiliates, parents, subsidiaries, licensees, and assigns (collectively hereinafter referred to, alternatively, as “Somtom,” the “Site,” “we,” “us,” “our” or similar identifying pronouns). Please read these Terms of Service carefully to ensure your legal use of the Site. They contain the legal terms and conditions that govern your use of the services provided to you by the Site and are a binding agreement with you. In using the Site, you affirm that you are at least 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and you are fully able and competent to enter into, abide by and comply with the terms, conditions, obligations, representations, and warranties set forth in these Terms of Service.
Duty to Monitor
By posting, uploading or submitting User Submissions to the Site, you are agreeing to these Terms of Service, the Somtom licensing terms (including the grant of Licensed Rights) and the user representations and warranties in connection with the User Submissions as further set forth below. In particular, you are representing and warranting that you own or control all rights to the User Submissions, including the requisite clearances, releases and authorizations for the use of any content, likeness, music tracks or other materials contained, included or depicted in the User Submissions.
In accordance with the Acceptability Guidelines, no Somtom user, including without limitation its members, shall post, upload or submit User Submissions which include any of the following: (i) invasion of privacy/publicity, including content which reveals the personal information of a third party; (ii) violence or physical abuse of any kind; (iii) defamation, slander or libel; (iv) illegal activities of any kind; (v) depictions of discrimination or discriminatory content; (vi) fraudulent or misleading content (including tags, titles and descriptions); (vii) pornographic, lewd or sexually explicit content; (viii) content which is clearly inappropriate for children; (ix) content involving harassment, intimidation, threats and other inappropriate predatory behavior; (x) content which is intended to disgust or shock; (xi) and intellectual property or other proprietary content or rights belonging to third parties, including without limitation the use of any third party likeness for which the user has failed to obtain the requisite releases, clearances and authorizations.
We reserve the right to remove any User Submissions for any reason, particularly if the User Submissions contain(s) any content in violation of these Acceptability Guidelines or which we otherwise deem to be inappropriate or unacceptable. We further reserve the right to terminate your Somtom membership and/or your access to the Site based on the seriousness or repeated nature of such violative, inappropriate or unacceptable User Submissions.
You agree that all Content downloaded, viewed or accessed will be used only for informational and/or evaluation purposes. You agree that you may be charged reasonable fees for downloading Content regardless of whether you actually license the Content. You agree there shall be no commercial exploitation or use, directly or indirectly, or any other unauthorized use of any Content available on this Site without an executed license agreement between you and Somtom. In case of circumvention, you agree that a breach of these Terms of Service by you would cause Somtom irrevocable injury and damage that cannot be adequately compensated by damages in an action at law. You therefore agree that, without limiting Somtom’s rights and remedies at law, including without limitation upon the right to seek damages for any such breach by you, Somtom shall further be entitled to injunctive and other equitable relief to prevent and/or cure any breach or threatened breach of this agreement, without proof of actual damages. In addition, you agree to indemnify and hold Somtom harmless from and against any and all claims, damages, liabilities, costs and expenses, including reasonable attorney’s fees, arising out of or resulting from your unauthorized use of any Content on the Site.
Ownership; License and Granted Rights to User Submissions
Upon uploading, submitting, emailing, posting, publishing or otherwise transmitting any User Submissions to the Site, you retain ownership of any intellectual property rights you hold in and to the User Submissions; however, you grant Somtom an exclusive, worldwide, assignable and sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, rearrange, promote, market, prepare derivative works based on, perform, display, publish, distribute, transmit, stream, broadcast and otherwise exploit such User Submissions in any form, method, medium, platform or technology now known or later developed, including without limitation on the Site and third party websites, podcast, video game consoles and services, mobile apps, video-on-demand and television (the “Licensed Rights”). Somtom shall further be granted the right to assign at their discretion the Licensed Rights in accordance with these Terms of Service. You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to grant the foregoing Licensed Rights to Somtom and you further license to us all patent, trademark, trade secret, copyright or other proprietary rights in and to such User Submissions. You acknowledge and agree that we shall own all rights, title and interest in and to all derivative works and compilations of User Submissions that are created by us, including without limitation all worldwide intellectual property rights therein. You agree to execute and deliver such documents and provide all assistance reasonably requested by us, at our expense, to give us the full benefit of these Terms of Service, including without limitation the License Agreement. You acknowledge that you are solely responsible for all User Submissions you upload, post or otherwise transmit using this Site. We do not endorse any User Submissions or any information, opinion, recommendation, or advice expressed therein. You represent and warrant that any User Submissions posted, uploaded or submitted by you are original to you and/or that you own and/or control all of the materials, content, and intellectual property contained therein, including without limitation the necessary licenses, releases, rights, consents, and permissions to grant Somtom the Licensed Rights and all other rights and licenses set forth in this Terms of Service agreement. Without limiting the foregoing, you represent and warrant that you have obtained the written consent, release and/or permission of each person who is identifiable in each of your User Submissions to use the name and likeness of each such person in your User Submissions in the manner contemplated by these terms. You further represent and warrant that your User Submissions (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right and will not require any costs or payments for their use by Somtom or its licensees and assignees; (ii) are not fraudulent, misleading, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening or obscene; (iii) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age; (iv) are not illegal and do not promote illegal or harmful activities or substances; (v) do not contain any computer programming routines or viruses (including without limitation: time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit unauthorized access to the Site or disable, damage or erase any portion of the Content stored therein; and/or (vi) do not otherwise violate the Somtom Acceptability Guidelines.
Payment to Copyright holder for License
Licensee will pay to Licensor 50% of the profit actually received from the Work (the “Payment(s)”). Licensee shall process the Payment to Licensor within fifteen (15) days after the end of each month; however, if the amount owed Licensor is less than seventy-five US dollars ($75 USD) in any given month, Licensee reserves the right to carry the Payment over until the amount exceeds seventy-five US dollars ($75 USD). If the amount never exceeds seventy-five US dollars ($75 USD) or if the Licensee ceases license acquisition operations, then no Payment will come due. Licensee will have no obligation to make any Payments which are reasonably suspected by Licensee, in its sole discretion, to have resulted from fraudulent, misleading or false activities by Licensor. Licensee shall not be responsible for any payments to Licensor for revenue earned in connection with the Licensed Rights but not received by Licensee for any reason (for example due to non-payment or where Licensee does not receive adequate reporting so as to enable Licensee to assign revenue). Licensor agrees that if the outstanding Payment does not exceed seventy-five US Dollars ($75 USD) for a period of twenty-four (24) months, account maintenance costs will exceed expected future revenue. In this event, any outstanding Payment will be charged as a maintenance fee, and no future Payments are due. Licensor may choose to be paid via PayPal, paper check, or electronic bank transfer (the “Payment Method”). Any electronic bank transfer fees will be deducted from the Licensor’s Payment prior to sending. Licensor agrees to provide Licensee all the necessary and accurate information required to process payment (the “Payment Details’) via their preferred Payment Method. If Licensor fails to provide Payment Details to Licensee within sixty (60) days of the execution of this Agreement or the expiration of provided Payment Details, Licensor will forfeit the outstanding Payment balance to Licensee. If after sixty (60) days Licensor updates Payment Details, Licensee will make Payments to the Licensor in accordance with the above terms for Net Revenue earned for the period after Payment Details are updated. Licensor further understands that Payments may be subject to Withholding Tax which will be paid on behalf of Licensor to the appropriate Tax Authority.
Copyright Infringement; Digital Millennium Copyright Act
Somtom does not permit copyright infringement on the Site and will remove any infringing content if we receive notice that such content infringes on another’s intellectual property rights. Somtom further reserves the right to terminate accounts or access to the Site in the case of repeat violators. If you are a copyright owner or an agent thereof and believe that any content on the Site infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
* 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 that site;
* Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
* The physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;* Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
* A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
* A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.If you fail to comply with all of the requirements set forth herein, your DMCA notice may not be valid. Notice can be submitted to Somtom’s designated Copyright Agent at email@example.com.If you believe that your User Submissions which were removed (or to which access was disabled) is/are not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your User Submissions, you may send a counter-notice containing the following information to the Copyright Agent:
* Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
* Your physical or electronic signature;
* A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
* Your name, address, telephone number, and e-mail address, a statement that you consent to the personal jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, Somtom may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Somtom’s sole discretion.
Limitation of Liability
Your communications with, business dealings with, or participation in promotions of merchants found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. You understand and agrees that any content downloaded or otherwise obtained through the use of this Site is done at your own risk and that you will be solely responsible for any damage done to your computer system or loss of data that results from the download of such content. We will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, content downloads or as the result of the presence of such merchants on the Site. You assume all risk of errors and/or omissions on the Site and any Third-Party Sites, including the transmission or translation of information. You assume full responsibility for implementing sufficient procedures and checks to satisfy your requirements for the accuracy and suitability of the Site and any Third-Party Sites, including the information contained therein, and for maintaining any means that you may require for the reconstruction of lost data or subsequent manipulations or analyses of the information provided hereunder. You acknowledge and agree that your use of the Site and any Third-Party Sites, and any information sent or received in connection therewith, may not be secure and may be intercepted by unauthorized parties. You assume the responsibility for the entire cost of all necessary maintenance or repair of your computer system or other property.
In no event shall Somtom, its parent, affiliates or subsidiary companies or their respective directors, officers, employees, agents, affiliates or suppliers be liable for any direct, indirect, punitive, incidental, special, consequential or other damages arising out of or in any way connected with the use of the Site or with the delay or inability to use the Site, or for any information, software, products and services advertised in or obtained through the Site, our removal or deletion of any materials or records submitted or posted on the Site, or otherwise arising out of the use of the Site, whether based on contract, tort, strict liability or otherwise, even if Somtom or any of its subsidiary companies, affiliates or suppliers has been advised of the possibility of damages. This waiver applies, without limitation, to any damages or injury arising from any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, file corruption, communication-line failure, network or system outage, theft, destruction, unauthorized access to, alteration of, or use of any record. You specifically acknowledge and agree that Somtom, its parent or subsidiary companies, affiliates or suppliers shall not be liable for any defamatory, offensive or illegal conduct of any user of the service. While some states do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages, you are consenting by these Terms of Service to personal jurisdiction in Montana.
Disclaimer of Warranties
Somtom is not responsible for, and expressly disclaims all liability for, damages of any kind arising out of use, reference to, or reliance on any information contained within the site. While the information contained within the site is periodically updated, no guarantee is given that the information provided in this Web site is correct, complete, and up-to-date. Although this site may include links providing direct access to other Internet resources, including Websites, Somtom is not responsible for the accuracy or content of information contained in these sites. Links from Somtom to third-party sites do not constitute an endorsement by Somtom of the parties or their products and services. The appearance on the Web site of advertisements and product or service information does not constitute an endorsement by Somtom, and Somtom has not investigated the claims made by any advertiser. Product information is based solely on material received from suppliers.
Child Protection Notification
This Site contains some content that might be deemed unsuitable to minors. This Site is intended for a mature audience and parents who find any material on this site unsuitable for their children are encouraged to utilize parental control services. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.
Violation of Terms of Service
You also agree that Somtom may, in its sole discretion and without prior notice, suspend or terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms of Service or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms of Service will constitute an unlawful and unfair business practice and will cause irreparable harm to Somtom for which monetary damages would be inadequate, and you consent to Somtom obtaining any injunctive or equitable relief that Somtom or its counsel deems necessary in such circumstances. These remedies are in addition to any other remedies Somtom may have at law or in equity.
If Somtom does take any legal action against you as a result of your violation of these Terms of Service, Somtom will be entitled to recover from you, and you agree to pay, all attorneys’ fees and costs of such action, in addition to any other relief granted. You agree that Somtom will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Service or as a result of technical problems or modifications to the Site or as otherwise required by law.
These Terms of Service and any rights and licenses granted by you hereunder (including without limitation the Licensed Rights) may not be transferred or assigned by you, but may be assigned by Somtom without restriction.
You agree to defend, indemnify and hold harmless the Site, Somtom, its parent, affiliates or subsidiary companies and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of or accruing from (i) your access to or use of this Site; (ii) your violation of these Terms of Service (including without limitation the Licensed Rights or any License Agreement); (iii) your violation of any third party right, including without limitation any intellectual property right, property or privacy right; or (iv) any claim that one of your User Submissions caused damage to a third party. You agree that we may at any time and without notice, suspend or terminate your access to this Site if you fail to comply with these Terms of Service or applicable law.
Governing Law; Dispute Resolution
You agree that: (i) the Site and all services provided shall be deemed solely based in Montana; and (ii) the Site and all services provided shall be deemed a passive website that does not give rise to personal jurisdiction over Somtom, its parent, affiliates or subsidiary companies and their respective directors, officers, employees and agents, in jurisdictions other than Montana. You agree these Terms of Service shall be governed by the internal substantive laws of the State of Montana, without respect to its conflict of laws principles. Although you acknowledge that we will have the ability to enforce our rights in any court of competent jurisdiction, you hereby consent to the personal jurisdiction and exclusive venue the State of Montana, U.S.A., regarding any and all disputes relating to these Terms of Service or your access to or use of the Site, including without limitation User Submissions. You acknowledge and agree that the warranty disclaimers and liability and remedy limitations in this agreement are material terms of this agreement and that they have been taken into account in the decision by us to provide the Site to you hereunder. Except in instances where Somtom deems it necessary to seek injunctive or other equitable relief (and as otherwise set forth in these Terms of Service), the parties hereby agree to submit any disputes or controversies between them to binding arbitration in Gallatin County, Montana in accordance with the rules of the American Arbitration Association. All rights to recover consequential, incidental and/or punitive damages are waived by you. In the event of any dispute, you shall not be entitled to and hereby waive all right to any equitable relief whatsoever, including the right to rescind this Terms of Service agreement, or to enjoin, restrain or interfere in any manner with the Site. The prevailing party shall be entitled to its reasonable outside attorneys’ fees and costs, including its share of the arbitration costs, from the losing party. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof.