TERMS OF SERVICE
Updated: March 23, 2017
I. Summary of Service
Seed&Spark provides a platform to:
Connect filmmakers to the tools they need to create and show films and other audio-visual works, including funding, making, marketing, distributing and showing.
Connect audiences to the films and audio-visual works they want to fund and watch.
We help filmmakers (“Project Owners”) raise money for their film projects (“Projects’) using a tool called the “WishList.” Seed&Spark’s crowdfunding tool works like a wedding registry for film production. Project owners must offer non-monetary incentives to contributors (“Supporters”) in the form of thank yous, credits, posters, items or experiences – among other things as must be approved by Seed&Spark in each instance. Supporters can pledge cash to the Project and/or can loan or gift items to the Project Owner. The Supporter is then entitled to the incentive reward offered by the Project Owner; or they can choose to opt out of receiving and incentive. Seed&Spark offers digital distribution for completed films by streaming such films, available to Users who pay a monthly subscription fee (all as more specifically provided for herein). All Users of the Site can take any kind of action allowed on the Site and as provided for by this Agreement, including starting a Project, funding a Project, following a Project (or un-following), following other Users (or un-following), and watching and/or distributing a movie or other audio-visual work. Users can pledge to or watch audio-visual works and make payments directly with their credit or debit card through Stripe, and save their information to streamline future payments. Please refer to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service.
Once a User registers and builds out a User Profile, some of their information will be viewable by the public: name, location (city only), short bio, movie preferences, and Seed&Spark stats, including how much they’ve pledged and how much they’ve raised with respect to applicable Projects on the Site. The User Profile will also show what movies they are following and contributing to. If they make their movie playlists public, the public will also be able to see the movies a User has watched or recommended. If the User has followers, his or her followers will receive email and/or site notifications when the User follows, funds, watches or recommends films or when the User Submits any Content to the Site.
The Service makes accessible various content, including, but not limited to, videos, movie trailers, completed films, audio-visual works, photographs, images, artwork, graphics, audio clips, comments, data, text, software, scripts, Projects, blog posts and other material and information, and associated trademarks and copyrightable works (collectively, “Content”). Project Owners, Supporters and other visitors to and users of the Service (collectively, “Users”) may have the ability to contribute, add, create, upload, submit, distribute, facilitate the distribution of, collect, post, or otherwise make accessible ("Submit") Content. “User Submissions” means any Content Submitted by Users.
II. Acceptance of Terms
The Service is available only to individuals who are at least eighteen (18) years old. You represent and warrant that if you are an individual, you are at least 18 years old and of legal age and capacity to form a binding contract, and that all registration information you submit is accurate and truthful. The Company may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access and/or use the Service is revoked in those jurisdictions.
III. Modification of Terms of Service
The Company reserves the right, in its sole discretion, to modify, amend, or replace these Terms of Service (or any other terms and/or conditions referenced herein), or change, suspend, or discontinue the Service (including, but not limited to, the availability of any feature, database, or Content) at any time for any reason and without prior notice. The Company may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. Furthermore, the Company may require additional information from you and/or require you to confirm acceptance of certain terms and conditions in order to use the Service, or with respect to certain options that may be available to you with respect to same. It is your responsibility to check the Terms of Service and other terms periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Service constitutes acceptance of those changes.
IV. Ownership of Site and Service
You agree that Seed&Spark owns and shall own all right, title and interest, throughout the world, in and to the Site and Service, and all copyrights, trade secrets, trademarks, service marks, trade dress rights, patent and invention rights, and other intellectual property and ownership rights associated therewith. The software that makes up the Site and Service is copyrighted and protected under the United States copyright laws as well as international treaty provisions the United States has entered into as well as by valuable trade secret rights of Seed&Spark. You further acknowledge and agree that nothing in this Agreement and no use of the Service shall cause to vest or be construed to vest in you any right, title, grant, or interest in or to the Service other than the express right to use the Service solely in accordance with the terms and conditions of this Agreement and any other applicable terms and conditions. Any rights not expressly granted herein are reserved by Seed&Spark.
V. General Rules and Conduct
As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Service or law, and to only use the Service for the purposes specifically contemplated hereby. The Service is provided only for your own personal, non-commercial use (except as allowed by the terms set forth in the section of these Terms of Service titled, "Projects and Commerce"). You are responsible for all of your activity in connection with the Service.
(a) You agree not to, shall not, and shall not permit any third party using your account to, take any action, or submit Content, directly or indirectly, that:
infringes any patent, trademark, service mark, trade secret, copyright, right of publicity, privacy right or other right of any other person or entity, or violates any applicable law or contract;
is false, misleading, or inaccurate;
is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another's privacy;
constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters;
contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of the Company or any third party;
impersonates any person or entity, including any employee or representative of the Company.
(b) Additionally, you agree not to and shall not, directly or indirectly:
take any action that imposes or may impose (as determined by the Company in its sole discretion) an unreasonable or disproportionately large load on the Company’s or its third-party providers’ infrastructure;
interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
use any network monitoring or discovery software to determine the Site’s architecture, or to extract information about usage or users;
bypass any measures the Company may use to prevent or restrict access to the Service (or other accounts, computer systems, or networks connected to the Service);
use any Company-owned mark or product name as a meta-tag or other ‘hidden text’ for search engines in a manner that does not inure to the benefit of Seed&Spark;
run Maillist, Listserv, or any form of auto-responder or "spam" on the Service; or
use manual or automated software, devices, or other processes to "crawl" or "spider" any page of the Site.
(c) You further agree not to and shall not, directly or indirectly:
decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction and/or to the extent any such source code is open source;
modify, translate, or otherwise create derivative works of any part of the Service; or
copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national, and international laws and regulations.
The Company does not guarantee that any Content will be made available through the Service. The Company has no obligation to monitor the Service or Content. The Company reserves the right to, at any time, for any reason, and without notice: (i) cancel, reject, interrupt, remove, or suspend a Project; (ii) remove any Content, including, but not limited to, any User Submission; and (ii) remove or block any User or User Submission. Seed&Spark reserves the right not to comment on the reasons for any of these actions; if Seed&Spark chooses in its sole discretion to so comment, however, such comment(s) shall in no way reduce or restrict any of Seed&Spark’s rights and remedies as provided for herein, by applicable law, or otherwise.
If you see anything on the Site that you believe violates our Terms of Service or any other term or condition of the Service, including but not limited to Content that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another's privacy or that constitutes spam, we encourage you to report it to the Company. Please note, however, that reporting such Content does not guarantee that it will be removed from the Site or that the Company will take any other actions. The Company may act in its sole discretion with respect to any such reports.
Certain Content on the Site may be viewed without registering (in the Company’s sole discretion in each instance), but as a condition of using certain aspects of the Service, you may be required to register with the Company and select a screen name ("User ID") and password, and make certain payments and/or provide certain payment or credit/debit card information as required by the Company and/or provided for herein (if and as applicable). You agree to provide accurate, complete, and updated registration and payment information. Failure to do so shall constitute a breach of the Terms of Service, which may result in immediate termination of your account and other remedies available to the Company.
You shall not use as a User ID, domain name, or Project name any name or term that:
is the exact or similar name of another person or entity, with the intent to impersonate, defame, disparage, mock, or ridicule that person or entity;
is subject to any rights of another person, without appropriate authorization; or
is otherwise offensive, vulgar, disparaging, defamatory, or obscene. The Company reserves the right in its sole discretion to refuse registration of or cancel a User ID, domain name, and/or Project name.
You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password for the Site. You shall never use another User account without the other User’s express permission. You will immediately notify the Company in writing of any unauthorized use of your account, or other known account-related security breach. You may use your settings to control your User Profile and how other Users communicate with you. By providing Seed&Spark your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail or other manner. We may also use your email address to send you other messages, including changes to features of the Service and special offers. You understand and agree that any notices or messages we send to you may be on an unencrypted basis.
VII. Projects and Commerce
A. Project Owners: Launching a Project & Distributing a Film; Rules
1. Launching a Project:
This means you are initiating the process of fundraising for your Project. You must fill out the launch forms on the Site and submit them to Seed&Spark for approval. Approval is based on answers to the questions in the forms, including incentives offered for the Project’s Supporters, a clear reason why the Project is being made, an absence of pornography or excessively graphic violence, and a clear production schedule. Read more here about what we look for to approve projects: https://www.seedandspark.com/blog/the-7-things-we-look-for-when-we-review-crowdfunding-projects. Approval or disapproval of a proposed Project is in the sole discretion of Seed&Spark, and Seed&Spark will incur no liability in connection with the approval or disapproval of any proposed Project, and you agree to and shall indemnify and hold Seed&Spark harmless for any and all liability and/or damage incurred by it (including reasonable attorneys’ fees and costs) resulting from such approval or disapproval.
2. Once a Project is approved:
The Project Owner can add edit the campaign and add appropriate items to the WishList at any time, but can only remove items during a campaign with the approval of Seed&Spark, unless the request for the item has been filled. A Project Owner must provide and maintain throughout the course of its Project a valid email address, so that Seed&Spark and Supporters can contact the Project Owner, and you hereby agree to receive emails from Company and be responsive to same. Further, Company may provide to Project Owner a new email address tied to the Project and your use of the Services related thereto, which you hereby accept. A Project Owner cannot change the name of its Project without the approval of Seed&Spark. A Project Owner selects a 30, 45 or 60 day fundraising period. No funds will be released until 7 business days after the end of the fundraising period, and then only if the funds pledged to the Project are at least 80% of its target amount. (“GreenLight” status). Successful crowdfunding (crowdfunding campaigns that end in a GreenLight) will likely result in access to distribution on Seed&Spark’s non-exclusive streaming distribution platform, subject at all times to these Terms of Service. You agree that as part of the Service, the Company may utilize and promote location-based services with respect to the Project, if and as applicable. Successful crowdfunding in no way obligates a Project to use Seed&Spark’s streaming distribution service.
3. Distributing a Film:
(a) A Project Owner can elect to distribute their completed film on Seed&Spark’s streaming platform or, at Seed&Spark’s sole election and subject to Project Owner’s agreement to all Company-required agreements, terms, and conditions, through one or more of Company’s distribution channels (including without limitation the revenue splits and payment terms associated therewith, which may differ from such terms as provided for herein, and may differ on a Project-by-Project basis). Unless otherwise mutually agreed between Company and Project Owner, Seed&Spark will be entitled to and shall receive 40% of all gross revenue earned with respect to the Project’s streaming on the Company’s platform; that gross revenue is determined after the portion of subscription revenue is allocated to crowdfunding projects. From the remaining 60%, the Project Owner will receive its portion of such amounts based on minutes watched of the Project as determined by Company pursuant to its record-keeping methods and procedures, consistently applied (payments to be provided quarterly to Project Owner if and to the extent any such revenue is earned), with the understanding and agreement by Project Owner that such 60% shall be net of any and all associated fees or charges with respect to the Project and any other deductions made by the Company pursuant to the Company’s streaming terms and conditions as provided for in this Agreement and on the Site. Please refer to the STREAMING AGREEMENT below.
(b) If accepted to distribute on Seed&Spark, your film may be eligible to be included in a number of promotional categories, slates, or featured position on the site. Inclusion in these is entirely at Seed&Spark’s discretion as the platform and curator; provided, however, that if selected for inclusion, you hereby agree that Seed&Spark may so include your film in any such promotions in Seed&Spark’s sole discretion.
(c) Distribution through partner channels. Seed&Spark is able to distribute films through various channels including but not limited to: theaters, Cable VOD and online retail platforms such as iTunes. Distribution output deals must be mutually agreed upon by Seed&Spark and the Project Owner, and are subject to one or more separate agreements. Revenue splits and payment terms vary from platform to platform, and are addressed in such separate agreement(s). Seed&Spark makes no guarantees or warranties about expected or actual revenue from these partner platforms.
4. PROJECT OWNER RULES
The following rules are applicable to Project Owners who hereby agree to be bound by same, in addition to all other rules and regulations applicable to Users under these Terms of Service:
Subject to the other provisions herein (including the repayment provisions provided below), Project Owners acknowledge and agree that funds, loans and gifts of goods and services pledged by Supporters (referred to as "pledges") will only be released to them if the Project has received pledges of eighty percent (80%) of the funds sought. If the Project does not receive pledges of 80% of the funds sought by the fundraising deadline, Seed&Spark will not charge the Supporters’ credit cards and no funds will be released to the Project Owner.
Project Owners should not take any action in reliance on having the money pledged until they have received pledges of 80% or more of the target amount, and are certain they will have the ability to withdraw and spend the money and that no disputes exist with respect to any such funds (at any time in the process, including after the funds have been provided to Project Owner). Because of occasional failures of payments from Supporters, Seed&Spark cannot and does not guarantee receipt or validity of any amount(s) pledged or provided to Project Owner. Seed&Spark is neither responsible nor liable for the failure of a Supporter to pay any amount pledged to a Project, and has no responsibility to take action on behalf of Project Owners or otherwise for collections of payments from Supporters that do not fulfill their payment obligations at any time. PLEASE READ THE FOLLOWING IMPORTANT RULES AND REQUIREMENTS, TO WHICH PROJECT OWNER AGREES TO BE BOUND:
FOR THE AVOIDANCE OF DOUBT, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, PROJECT OWNER (AND NOT COMPANY OR ANY THIRD PARTY PROCESSING COMPANY WITH WHOM COMPANY DEALS, INCLUDING STRIPE) SHALL BE SOLELY AND ULTIMATELY RESPONSIBLE IF ANY PLEDGE IS DISPUTED AT ANY TIME, INCLUDING AFTER FUNDS HAVE BEEN TRANSFERRED TO PROJECT OWNER.
IF A DISPUTE REGARDING A PLEDGE OCCURS AND DISPUTED FUNDS HAVE ALREADY BEEN TRANSFERRED TO PROJECT OWNER, COMPANY WILL WORK WITH ITS THIRD PARTY PROCESSING COMPANY TO SETTLE THE DISPUTE WITH THE CARD ISSUER. PROJECT OWNER WILL BE NOTIFIED THAT A DISPUTE HAS BEEN FILED, AND WILL REASONABLY ASSIST COMPANY BY PROVIDING EVIDENCE TO ATTEMPT TO RESOLVE THE DISPUTE IN PROJECT OWNER’S FAVOR. DURING THE TIME WHEN ANY DISPUTE IS ONGOING, PROJECT OWNER AGREES NOT TO USE OR TRANSFER ANY OF THE FUNDS IN DISPUTE. IF THE SUPPORTER’S DISPUTE IS FOUND VALID (WHICH MAY TAKE UP TO 60 DAYS OR LONGER), PROJECT OWNER SHALL BE REQUIRED TO RETURN THE DISPUTED FUNDS TO COMPANY IMMEDIATELY UPON REQUEST FOR SAME; FAILURE TO DO SO SHALL RESULT IN INTEREST BEING CHARGED AND DUE FROM PROJECT OWNER TO COMPANY IN THE AMOUNT OF 1% PER MONTH, COMPOUNDED MONTHLY, UNTIL THE ENTIRE AMOUNT DUE IS RETURNED TO COMPANY; PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, IF THE DISPUTE IS IN THE AMOUNT OF $500 OR GREATER, PROJECT OWNER AGREES TO AND SHALL RETURN THE DISPUTED FUNDS TO COMPANY IMMEDIATELY UPON BEING NOTIFIED OF THE DISPUTE AND FAILURE TO DO SO SHALL RESULT IN INTEREST BEING CHARGED AND DUE FROM PROJECT OWNER TO COMPANY IN THE AMOUNT OF 1% PER MONTH, COMPOUNDED MONTHLY, UNTIL THE ENTIRE DISPUTED AMOUNT IS RETURNED TO COMPANY. IN SUCH INSTANCES WHERE THE DISPUTE IS $500 OR GREATER, COMPANY SHALL HOLD THE DISPUTED AMOUNTS AND SHALL DISPERSE SUCH FUNDS AS REQUIRED BY THE OUTCOME OF THE DISPUTE.
SEED&SPARK IS NOT A GUARANTOR OF ANY PLEDGES MADE, AND SHALL NOT BE LIABLE OR HELD RESPONSIBLE FOR ANY FAILURE BY A SUPPORTER TO HONOR A PLEDGE, REGARDLESS OF WHEN SUCH FAILURE OCCURS. IF SUCH A FAILURE OCCURS, PROJECT OWNER’S SOLE RECOURSE SHALL BE AGAINST THE SUPPORTER THAT FAILED TO HONOR SUCH SUPPORTER’S PLEDGE.
PROJECT OWNERS SHALL BE REQUIRED TO PROVIDE A VALID CREDIT CARD AT THE TIME OF STARTING A PROJECT, WITH AN ADEQUATE LIMIT TO COVER ANY FAILURE BY PROJECT OWNER TO TIMELY REPAY ANY DISPUTED FUNDS AS PROVIDED FOR HEREINABOVE, AND COMPANY IS HEREBY AUTHORIZED TO CHARGE SUCH CREDIT CARD IN ORDER TO BE REIMBURSED ANY SUCH DISPUTED AMOUNTS.
IF A PROJECT OWNER MAKES A PLEDGE TO HIS/HER OWN PROJECT, PROJECT OWNER MUST FULFILL THAT PLEDGE UPON THE SAME TERMS AS ANY OTHER SUPPORTER. IF THE PAYMENT FROM A PROJECT OWNER IS DECLINED AFTER THE FUNDRAISING PERIOD AND THE DECLINATION OF THAT PAYMENT RENDERS THE TOTAL AMOUNT RAISED TO BE LESS THAN 80% OF THE GOAL, ALL MONIES MUST BE RETURNED TO SUPPORTERS. IF ANY SUCH DECLINE OF PAYMENT OCCURS, PROJECT OWNER AGREES THAT SAME SHALL BE DEEMED PRIMA FACIE EVIDENCE OF PROJECT OWNER’S INTENT TO DEFRAUD SEED&SPARK AND THE OTHER PROJECT SUPPORTERS, AND PROJECT OWNER SHALL BE SUBJECT TO ANY AND ALL AVAILABLE REMEDIES BY SUCH DEFRAUDED PARTIES, ALONG WITH POSSIBLE CRIMINAL CHARGES BY APPROPRIATE AUTHORITIES.
Project Owners must ensure that the determined value of incentive rewards offered are reasonably consistent with the corresponding WishList tier level, and Project Owner is fully responsible for all such determinations. Project Owners are required to fulfill in a timely manner the incentive rewards promised in their WishList, if their fundraising is successful. Project Owners shall contact each Supporter of their Project in a timely manner after such Supporter makes a pledge to arrange for incentive fulfillment; if a Project Owner is unable to meaningfully contact and interact with any Supporter, Project Owner shall immediately inform Company of same and Company may withhold such Supporter’s pledged amount until meaningful contact is established between Project Owner and such Supporter, and evidence of same is provided to Company. Notwithstanding the foregoing, Company may in any instance withhold the provision of pledged funds if it believes (in its sole discretion) that such pledge may ultimately not be honored, is fraudulent, or is suspicious in any manner. Project Owners will make a good faith attempt to fulfill each incentive reward by its Estimated Delivery Date. If a Project Owner cannot fulfill an incentive reward, the Project Owner must promptly and fully refund any money pledged by any Supporter whose reward they do not or cannot fulfill, including any fee deducted by Seed&Spark (for which, once earned, Seed&Spark shall never be liable to Project Owner and/or Supporter). Project Owners may cancel or refund a Supporter’s pledge at any time and for any reason and, if they do, Project Owner is not required to fulfill the corresponding incentive reward. If a Project Owner cancels or refunds a Supporter’s pledge, or cancels a Project after he or she has received the funds, the Project Owner must promptly and fully refund any money pledged by any Supporters, including any fee deducted by Seed&Spark. Seed&Spark is not obligated to refund its fee to a Supporter once funds have been released to the Project Owner. Any incentive reward offered must be lawful under all applicable laws, including without limitation state and federal securities laws, and compliance with same is the sole responsibility of Project Owner in every instance. Seed&Spark makes no representation of any kind to Project Owner, any Supporter, or otherwise, that an incentive reward is lawful and/or compliant as required under any law, rule, and/or regulation, and Project Owner hereby releases, indemnifies, and holds Seed&Spark harmless from any and all liability, costs, and/or damages (including reasonable attorneys’ fees and costs) that result from or relate to any failure of such compliance regardless of fault.
Project Owners may designate a legal entity to which funds will be directed, and any such entity will be included in the definition of Project Owner as used herein. By providing the name of any such entity to Seed&Spark, you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to the terms of this Agreement, that such entity is the legal entity responsible for the Project and accountable for the use of any funds raised for the Project on the Site, that any such use will be appropriate and at all times in accordance with these Terms of Service, and that you accept this Agreement on such entity's behalf.
Payment processing services for Project Owners on Seed&Spark are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms of Service or continuing to operate as a Project Owner on the Site, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time; provided, however, that this Agreement shall govern if there is any discrepancy between this Agreement and the Stripe Services Agreement. As a condition of Seed&Spark enabling payment processing services through Stripe, you agree to provide Seed&Spark accurate and complete information about you and (if applicable) your business, and you authorize Seed&Spark to share it and transaction information related to your use of the payment processing services provided by Stripe. Seed&Spark shall have no liability for transactions or interactions with the third-party payment processor, including without limitation in any instance where a pledge has been made by a Supporter and such Supporter fails to pay such pledge in a timely manner if and when collection comes due. Project Owner understands and agrees to accept all risks associated with pledges that are made and that there is a risk that if and when such pledges come due for collection, the Supporter may fail to make good on payment (even after funds have already been provided to Project Owner); any such failure shall in no event be Company’s responsibility, and Project Owner agrees not to and shall not seek any remedies or damages from Company with respect to such collections, and if applicable, shall return the disputed funds to Company or be charged for same as provided for hereinabove. Project Owner understands and agrees that recourse for any such failures may only be made by Project Owner directly against the Supporter that failed to make good on their pledge.
All pledges paid to a Project Owner will constitute "Project Funding," and the Seed&Spark fee and all other Project Funding requirements will apply. Seed&Spark is not responsible for any error or omission in the payment information provided by a Project Owner. If fundraising is successful, Project Funding, less Seed&Spark’s fee and any third-party processing fees, will be disbursed to the Project Owner's bank account according to the Project's disbursement details (as set by Project Owner through Stripe).
Project Owners’ representations regarding their production schedule and distribution plan will be made in good faith and Project Owners will use commercially reasonable best efforts to ensure accuracy and maintenance of their proposed schedule. Project Owners agree to post periodic updates regarding the status of the Project, including any changes or delays in the production schedule or the delivery date of incentive awards.
If a Project is successfully funded using Seed&Spark’s platform and tools, Project Owner is required to produce the promised film, show or pitched project substantially as represented in their Project Profile on the Site. Failure to do so, however, shall not result in any liability to Seed&Spark, and Project Owner agrees to and shall be solely responsible for and indemnifies Seed&Spark against any and all damages resulting from such failure (including without limitation for reasonable attorneys’ fees and costs).
If a Project is successfully funded using Seed&Spark’s platform and tools, Project Owner agrees to and shall acknowledge Seed&Spark by including the Seed&Spark name and logo in the credits of the completed Project, in accordance with the specifications provided on the Site.
Any Project Funding payments may be subject to verification of the identity of the Project Owner, the use of funds, and the timeline of the Project. The verification procedure may involve an interview and/or document review if deemed necessary and may vary from time to time in Seed&Spark’s sole discretion. Project Owner agrees that Project Funding may only be used on behalf of the Project, and that Project Funding will not be used for any other purpose. Project owner agrees that if at any time while a fundraising period is open or within thirty (30) days after the close of a fundraising period, Seed&Spark makes a good faith determination that the identity of the Project Owner or the timeline of the Project are not as represented on the Site or in the Project Profile, or that the Project Funding has not been used solely on behalf of the Project, the Project Owner will promptly refund the entire amount of Project Funding to the Supporters, including any fees deducted by Seed&Spark. Seed&Spark may change, amend, alter, or modify the rules regarding fundraising at any time. If you do not accept a change we make to the fundraising rules, your sole remedy shall be to terminate your Project.
Project Owner shall have full responsibility for applicable taxes for all Project Funding paid under this Agreement, and for compliance with all applicable labor and employment requirements with respect to your self-employment, sole proprietorship or other form of business organization, and with respect to your employees and contractors, including state worker's compensation insurance coverage requirements and any U.S. immigration visa requirements. Project Owner agrees to indemnify, defend and hold harmless Seed&Spark from any liability for, or assessment of, any claims or penalties with respect to such withholding taxes, labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on Seed&Spark by the relevant taxing authorities with respect to any Project Funding paid to you.
The Project Funding monies that are distributed from Seed&Spark to Project Owners may be taxable, and the Project Owner bears the responsibility to file income tax returns and to pay income tax on Project Funding if required. Seed&Spark and/or the third-party payment processor, as applicable, will issue Form 1099 or Form 1099k to persons providing Project Funding as it deems appropriate under applicable laws. Each Project Owner is required to submit to Seed&Spark a W-9 Form in order to commence a Project. Project Owners are advised to consult your tax advisor for more information, and Seed&Spark provides no tax or legal advice and none should be inferred by these Terms of Service or otherwise.
Seed&Spark makes no guarantee regarding the number or amount of pledges, or the amount of any Project Funding payment to be made to you or the Project under this Agreement.
Seed&Spark reserves the right to cancel a pledge at any time and for any reason. Seed&Spark reserves the right to reject, cancel, interrupt, remove, or suspend a Project at any time and for any reason. Seed&Spark is not liable for any damages as a result of any of the aforementioned actions.
Project Owners distributing on Seed&Spark’s streaming platform shall not distribute or post their completed film for viewing free of charge on the Internet or otherwise make their completed films available free of charge on the Internet.
By starting a Project, the Project Owner is offering the public the opportunity to enter into a contract with Project Owner to provide funding or other pledges to the Project. By being a Supporter, the Supporter accepts that offer and a contract between the Project Owner and the Supporter is formed. Seed&Spark is not a party to that agreement between the Project Owner and the Supporter.
Project Owners may not offer or sell securities, equity investments, ownership interests or distribution rights in their Projects through Seed&Spark. Pledges to Projects using Seed&Spark are limited as set forth in these Terms of Service and on the Site. If a Project Owner plans to offer or is offering securities or equity investments in their Projects other than through Seed&Spark, whether under Regulation D of Securities Act of 1933 or otherwise, Seed&Spark recommends that the Project Owner confer with their legal advisor regarding the propriety of starting a Project and seeking pledges through Seed&Spark.
B. Supporters: Contributing to Crowdfunding Campaigns
Seed&Spark provides you the opportunity to make pledges to any Project listed on our Site. You can make pledges to as many Projects as you choose.
Pledges come in three categories:
Pledge cash towards a specific WishList Item
Make a cash pledge in any amount (either one-time or on a subscription basis as more specifically provided for herein and on the Site)
Loan or gift an item or service from the WishList
Loans or gifts are brokered between the Supporter and the Project Owner, Seed&Spark is not responsible for the transaction in any way.
A Supporter can make a pledge of any amount (whether towards a WishList item or as a cash pledge). At the time a cash pledge is made, Stripe will add the Supporter’s required credit or debit card information to it’s payment system, as applicable (and depending on the card provider, Supporter may see a pre-authorization). If pledges to the Project reach at least 80% fulfillment of the Project’s funding goals and the campaign ends, the Supporter’s card will be charged at that time. If a Supporter is contributing cash, the Supporter will be asked upon checkout if they would like to add 5% to their pledge to cover the Seed&Spark fees for the filmmaker. Seed&Spark does not warrant or guarantee the use of any Project Funding or the outcome of any Project and specifically disclaims any responsibility with respect to same.
A Supporter understands and agrees that it has a legal obligation to make good on a pledge, IN a timely manner, if and when a campaign is successful; failure to do so may result in legal action against such Supporter by the Project Owner.
Payment processing services for Project Owners on Seed&Spark are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to these Terms of Service or continuing to be a Supporter on the Site, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time; provided, however, that this Agreement shall govern if there is any discrepancy between this Agreement and the Stripe Services Agreement. Supporter agrees that, after a cash pledge is made, such Supporter shall update such Supporter’s payment information so as to make sure such cash pledge can be fulfilled if and when a campaign is successful (i.e. when pledges to the Project reach at least 80% fulfillment of the Project’s funding goals). As a condition of Seed&Spark enabling payment processing services through Stripe, you agree to provide Seed&Spark accurate and complete information about you and (if applicable) your business, and you authorize Seed&Spark to share it and transaction information related to your use of the payment processing services provided by Stripe. Seed&Spark shall have no liability for transactions or interactions with the third-party payment processor.
If you pledge cash to a successful Project (a campaign that receives pledges of 80% or more of their WishList total value), transactions are non-refundable by Seed&Spark. These pledges are made at your sole risk and based on your sole discretion. You are solely responsible for determining whether a pledge (or any portion thereof) is tax-deductible, and are advised to consult a tax professional; provided, however, that You fully understand and agree that your pledge may very well not be tax-deductible and that Seed&Spark makes no such determination or provides any guidance whatsoever with respect to same.
A Project Owner is not required to grant a Supporter’s request for a refund unless the Project Owner is unable or unwilling to fulfill the incentive reward or the Project Owner cancels the Project.
If you made a cash pledge or fund a WishList item of a Project campaign that is not successful (i.e. does not receive 80% or more of the funding goal within the Project campaign time period), your card will not be charged.
Making a pledge does not:
Give you any rights in or to that Project, including without limitation any ownership, control, equity, investment or distribution rights;
Give you any rights to limit the ability of the Project Owner to solicit other funding for the Project, enter into contracts for the Project, allocate rights in or to the Project or direct the Project or Project Owner in any way;
Give you rights to distribute, license, or otherwise screen the film except as agreed upon with the Project Owner;
Give you any rights to restrict or otherwise limit Seed&Spark's right to enter into agreements or business relationships relating to Projects, or provide you any rights in and to Seed&Spark, the Site and/or the Service. The only rights provided to you upon making a pledge are as specifically set forth herein and on the Site.
From time to time, Seed&Spark may deem that a Project requires more time for its fundraising campaign. If the Project Owner agrees, Seed&Spark may grant a Project a campaign time extension. This is for the benefit of the Project Owners and its Supporters. Supporters who have made pledges to these Projects may not revoke their pledges based on a Project extension.
Seed&Spark does not guarantee that any Project's funding goals will be met. A Supporter is responsible for any due diligence they deem necessary to decide to make a pledge. Seed&Spark may at its sole discretion and judgment require the refund of pledges, but is under no obligation to do so for successful Projects. Supporter acknowledges and agrees that your pledges are between Supporter and the Project Owner, and that Seed&Spark is not responsible for pledge transactions (except to the extent of its 5% fee and if Seed&Spark is holding any funds as payment processor), including without limitation any personal or payment information Supporter provides.
to provide their payment information at the time they pledge to a Project as required by Seed&Spark and/or any Company-approved third-party payment processors (such as Stripe). The amount Supporters pledge to pledge is the amount they will be charged upon the close of a successful campaign (a campaign that reaches 80% or more of its WishList total);
to authorize Seed&Spark or its third-party payment processors to charge on Supporter’s payment card or other payment method for an amount up to the full pledge immediately upon close of a successful campaign; and
to have sufficient funds or credit available at the funding deadline to ensure that the pledge will be collectible.
Loans and gifts of Goods and Services
All loan and gift transaction are solely between the loaning or gifting User and the Project Owner.
Seed&Spark is not responsible for brokering a loan or gift transaction in any way, beyond putting the User in contact with the Project Owner.
The loaning or gifting User agrees that it will loan or gift the item as represented by such User.
Seed&Spark will not be liable in any manner with respect to agreements or pledges to loan or gift items to a Project, nor with respect to any loaned or gifted items, including the condition of any such items, whether upon loan or return.
Seed&Spark will not be liable for lost, stolen, destroyed or damaged items, or for loaned items that are otherwise not returned or returned in a condition other than as originally loaned. Any and all such liability shall remain solely with Project Owner, and Supporter agrees not to seek remedies from Company for any such damage or destruction.
Loans may not constitute more than 40% of the campaign funding goal.
Incentives offered by Project Owners for pledges of any kind to a Project are strictly between the Project owner and the Supporter. A Project Owner is not required to grant a Supporter’s request for a refund unless the Project Owner is unable or unwilling to fulfill the incentive reward or the Project Owner cancels the Project. For some incentive rewards, the Project Owner will need further information from Supporters, such as a mailing address or t-shirt size, to enable the Project Owner to deliver the incentive rewards. To receive the reward, Supporters agree to provide the reasonably requested information to the Project Owner and failure to do so in a timely manner will release Project Owner from the obligation to deliver such incentive awards without any obligation to return the pledge.
Seed&Spark does not represent, warrant or guarantee:
Incentives will be delivered;
Incentives will be satisfactory to you; or
The use of pledges (even when a supporter chooses to fund a WishList item) or the outcome of the campaign.
What happens when you Support a Project:
You automatically become a “follower” and will receive updates via email notification from the Project Owner. You can opt-out of these updates in your Notification Settings in your User Profile.
The Project will appear under the “Projects I’m Supporting” section of your User Profile.
You can opt to support a Project anonymously (except in the case of loans or gifts) in which case the Project will not appear on your User Profile and your pledge will be listed as “Anonymous.” The funding amount will still appear in your User Profile.
Seed&Spark provides to the Project Owner each Supporter’s User ID and pledge amount, incentive selection, as well as other details provided by the Supporter in the Supporter’s User Profile such as links to social media profiles and location city.
Deductibility; No Tax Representations
Seed&Spark makes no representations regarding the deductibility of any pledge for tax purposes. Supporters are directed to consult your tax or legal advisor for more information. Projects that have agreements with a Fiscal Sponsor may be able to provide deductibility through the agreement with that Fiscal Sponsor, in which instances only Seed&Spark may act as a limited agent for the Fiscal Sponsor, all as more specifically provided for in the Fiscal Sponsorship Terms of Service below. In such instances, deductibility would then be the sole responsibility of the Fiscal Sponsor, to whom Seed&Spark will provide a supporter’s name, email address and pledge amount. Please refer to the Fiscal Sponsorship Terms and Services provided hereinbelow for further details.
D. Viewers; Subscribers
A viewer can pay by credit or debit card (subject to the aforementioned terms and conditions related to Stripe) to watch streaming Content. A viewer does not need to be registered to view promotional assets such as posters and trailers. Viewing Content on the Site is subscription-based model only, subject at all times to the terms and conditions established by the Company herein and on the Site, which may be modified by the Company from time to time in the Company’s sole discretion; provided, however, that subscribers will be notified of any changes in subscription fees and have an opportunity to cancel their subscription prior to any such change in fees taking effect.
The Project Owner grants to each viewer a worldwide, revocable, non-exclusive, non-sublicensable and non-transferable license to view the Project Owner’s film solely for personal, non-commercial use upon such terms and for such time periods as viewer agrees to upon purchase. Use, reproduction, modification, distribution or storage of any film for other than personal, non-commercial use, including any public display of any film using the Service, is strictly prohibited without prior written permission from the Project Owner and/or from any other copyright holder, and will result in immediate revocation of the license granted to viewer by Project Owner. Seed&Spark hereby disclaims any and all liability for any failure by a viewer to abide by the foregoing and Project Owner hereby forever releases Seed&Spark from any and all liability and/or damage(s) resulting from or related to any viewer’s breach of the foregoing, and indemnifies and holds Seed&Spark harmless from any damages or liability (including reasonable attorneys’ fees and costs) with respect to or resulting from same.
E. Additional Subscription Terms and Conditions; Seed Fund
1. Seed Fund
Project Owners can decide if they would like to make their Project eligible for the Seed&Spark “Seed Fund” (with prior approval by the Company required in each instance). In order to be eligible to so participate, the Project Owner shall and hereby does provide and grant to the Company the non-exclusive right to stream the Project via the Company’s SVOD platform, which right shall be governed by the STREAMING AGREEMENT below. Project Owner understands and agrees that any Project that plans to be available via free VOD platforms shall not be eligible to participate in the Seed Fund. While Seed&Spark expects all Seed Fund recipients to comply with the agreement, the agreement shall not block a preferred distribution deal offered to the Seed Fund Recipient.
In order for a Project to qualify to be selected for the Seed Fund, a Project must have reached at least 80% of its funding goal and at least 500 followers. Seed&Spark will then market the project to its members who can elect to pledge $5 to that project. If the Project receives monies through the Seed Fund, the Project Owner agrees to include "Seed&Spark Seed Fund" in the credits for the finished Project. Seed&Spark will provide certain marketing support and promotion for all Projects funded through the Seed Fund, the specifics of which shall be as provided on the Site or as otherwise mutually agreed between Company and the respective Project Owner(s).
Viewers can subscribe through certain pages on the Site including seedandspark.com/ep, while making a pledge to a campaign and on the Billing & Payments section on the Edit Profile page. Your card will be charged immediately upon subscribing and then again each month on your bill date until canceled.
A viewer’s subscription can be canceled by such viewer on the Billing & Payments section of the Edit Profile page. When canceled, your subscription will remain active until the end of your current billing cycle. You can reactive your subscription at any time from the same page, and will be charged immediately (and your monthly bill date will be updated accordingly).
As a Seed&Spark Subscriber, you will be able to allocate part of your subscription payment toward a new crowdfunding Project of your choice. You will receive an email each month with a list of candidate projects and will have 7 days to make a selection. At the end of the 7 day voting period your funds will be allocated to the selected Project. You will also automatically become a Follower of the selected project. If you do not make your selection within the 7 day voting period, your funds will be allocated by Seed&Spark's crowdfunding team. Unfollowing a project does not cancel your vote. Additionally, you will have access to watch unlimited movies and shows on Seed&Spark. Projects to which you allocate funds will be added to the "Projects I'm Supporting" section on your Seed&Spark profile. You can choose in your privacy settings whether these are public or private. Films and shows you watch, queue and follow will be added to your profile, and you can choose whether or not to display these as a part of your public profile in your privacy settings. If you have profile followers, they will be notified when you vote for a project to fund or recommend a Project. Allocating half of your subscription does not entitle you to any ownership stake in the project; provided, however, that it may qualify you for a reward or bonus as determined by Seed&Spark or by the Project Owner’s of the Project.
G. Hold Harmless; Indemnification
Seed&Spark is not liable for any damages or loss incurred related to incentive rewards, pledges, gifts/loans, the use of Cast and Crew, or any other use of the Service or Site. All dealings are solely between Users. Seed&Spark is under no obligation to become involved in disputes between any Users, or between Users and any third party. This includes, but is not limited to, delivery of goods, services and pledges, and any other terms, conditions, warranties, or representations associated with Projects on the Site. Seed&Spark does not oversee the performance or punctuality of Projects. The Company does not endorse any User Submissions. You release, indemnify, and hold Seed&Spark, its affiliated entities (including without limitation Bright Ideas) and its and their respective officers, directors, owners, managers, employees, agents, contractors, legal representatives, successors and assigns harmless from any and all claims, damages, liabilities and demands of every kind, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and the Service. You acknowledge and agree that but for the foregoing release, indemnification and hold harmless, the Company would not agree to provide the Service to you and would immediately restrict you from being a User of the Service. This Section and all indemnification and related provisions in these Terms of Service and any other agreement, terms, or conditions on the Site shall survive the termination of same and/or your termination of using the Service for any or no reason.
VIII. Fees and Payments
Joining Seed&Spark is free. However, we do charge fees for certain services as provided for herein and on the Site. When you use a service that has a fee you will have an opportunity to review and accept the fees that you will be charged. Changes to fees are effective after we provide you with notice by posting the changes on the Site. You are responsible for paying all fees and taxes associated with your use of the Service. To the extent the Service or any portion thereof is made available for any fee, you will be required to provide Seed&Spark information regarding your credit or debit card or other payment instrument. You represent and warrant to Seed&Spark that such information is true and that you are authorized to use such card or payment instrument. You agree to and will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. Failure to comply with these payment provisions shall in no way relieve you of your payment obligations to Seed&Spark.
Once funding for a Project is successful, Seed&Spark will remove its fees before transmitting a pledge to the Project Owner and you agree Seed&Spark has the unrestricted right to do so. Once the pledge is forwarded to the Project Owner, Seed&Spark shall have no liability or responsibility with respect to the use of such pledge. You hereby authorize Seed&Spark to bill your payment instrument in accordance with the terms of this Agreement and/or any other agreements, terms, and conditions to which you have agreed (including without limitation the terms and conditions agreed upon with respect to a Project that has requested and/or received fiscal sponsorship as contemplated herein), and you further agree to pay any charges so incurred.
IX. Third-Party Sites and Mobile Services
The Service may permit you to link to other websites or resources on the internet, and other websites or resources may contain links to the Site. When you access third-party websites, you do so at your own risk. Those other websites are not under the Company's control, and you acknowledge that the Company is not liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of those other websites or resources. The inclusion on another website of any link to the Site does not imply endorsement by or affiliation with the Company. You further acknowledge and agree that the Company shall not be liable for any damage related to the use of any content, goods, or services available through any third-party website or resource.
Pitch videos are uploaded to Seed&Spark with a YouTube link. Users uploading any such Content to the Site or sharing video links from the Site acknowledge and agree that they are subject to and will abide by the terms, conditions and policies of YouTube available at www.youtube.com.
The Service may include certain services that are available via a mobile device, including without limitation (i) the ability to upload Content to the Service via a mobile device, (ii) the ability to browse the Service and/or view streaming Content from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the ”Mobile Services“). To the extent you access the Service through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you understand that certain information about your usage of the Mobile Services may be communicated to us.
X. Content and License
You agree that the Service contains Content provided by the Company and its partners and Users and that the Content may be protected by copyrights, trademarks, service marks, patents, trade secrets, or other rights and laws. You shall abide by and maintain all copyright and other legal notices, information, and restrictions contained in any Content accessed through the Service.
To the extent the Company is the owner of the Content only, the Company grants to each User of the Service a worldwide, revocable, non-exclusive, non-sublicensable and non-transferable license to use the Content, solely for personal, non-commercial use and as contemplated herein. Use, reproduction, modification, distribution, or storage of any Content for other than personal, non-commercial use solely in accordance with this Agreement is prohibited without prior written permission from the Company, or from the copyright holder if applicable. You shall not sell, license, rent, or otherwise use or exploit any Content for commercial use or in any way that violates any third-party right or the terms of this Agreement.
XI. Intellectual Property of Users
By Submitting User Submissions on the Site or otherwise through the Service, you agree to the following terms:
Seed&Spark will not have any ownership rights over your User Submissions.
However, the Company needs the following license and representations to perform and market the Service on your behalf and on behalf of its other Users and itself.
You grant to the Company the worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable right to (and to allow others acting on its behalf to):
use, edit, modify, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully exploit your User Submissions and your trademarks, service marks, trade names, slogans, logos, and similar proprietary rights (collectively, the "Trademarks") in connection with (a) the Service, (b) the Company’s (and its successors' and assigns’) businesses, (c) promoting, marketing, and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third-party websites);
take whatever other action is required to perform and market the Service;
allow its Users to stream, transmit, playback, download, display, feature, distribute, collect, and otherwise use the User Submissions and Trademarks in connection with the Service; and
use and publish, and permit others to use and publish, the User Submissions, Trademarks, names, likenesses, and personal and biographical materials of you and the members of your group, in connection with the provision or marketing of the Service. The foregoing license grant to the Company does not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions.
In addition, you represent and warrant to the Company the following:
You are publishing your User Submission, and you may be identified publicly by your name or User ID in association with your User Submission.
You grant to each User a non-exclusive license to access your User Submissions through the Service, and to use such User Submissions solely for personal, non-commercial use as contemplated by this Agreement.
Your User Submissions do not and will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Seed&Spark all of the license rights granted herein.
You will pay all royalties and other amounts owed to any person or entity based on your Submitting User Submissions to the Service or the Company’s publishing or hosting of the User Submissions as contemplated by these Terms of Service.
The use or other exploitation of User Submissions by the Company and Users as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.
The Company shall have the right to delete, edit, modify, reformat, excerpt, or translate any of your User Submissions.
You will be truthful and accurate in all information you provide to the Company.
All information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which that Content originated.
The Company will not be liable for any errors or omissions in any Content.
The Company cannot guarantee the identity of any other Users with whom you may interact while using the Service.
All Content you access through the Service is at your own risk and you will be solely responsible for any resulting damage or loss to any party.
By providing information and/or Content, you hereby agree that Seed&Spark may use such information as it deems appropriate, and you understand and acknowledge that such information (and other information gathered by Seed&Spark with respect to same) may be used, aggregated and/or displayed by Seed&Spark as it determines in its sole discretion, including without limitation on the Site’s “Total Transparency Dashboard” or otherwise.
In accordance with the Digital Millennium Copyright Act ("DMCA"), Seed&Spark has adopted a policy of, in appropriate circumstances, terminating User accounts that are repeat infringers of the intellectual property rights of others. Seed&Spark also may terminate User accounts even based on a single infringement or otherwise in Seed&Spark’s sole and unfettered discretion. You understand and agree that to be included in certain distribution platforms provided by Company (in Company’s sole discretion in each instance), you may be required to agree to additional terms and conditions. The Company has no obligation to include any Project in any such distribution platforms.
XII. Privacy and Security
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal information and any Content or other information at your own risk, and you hereby release and forever discharge the Company from any and all liability with respect to any failure by Company to protect such information and/or Content unless such failure is due to the Company’s intentional misconduct.
XIII. Copyright Notifications
Seed&Spark will remove infringing materials in accordance with the DMCA if properly notified that Content infringes copyright. If you believe that your work has been copied in a way that constitutes copyright infringement, please notify Seed&Spark's Copyright Agent in writing. Your notice must contain the following information (please confirm these requirements with your legal counsel, or see the U.S. Copyright Act, 17 U.S.C. §512(c)(3), for more information):
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
a description of the copyrighted work that you claim has been infringed;
a description of where the material that you claim is infringing is located on the Site, sufficient for Seed&Spark to locate the material;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf.
If you believe that your work has been removed or disabled by mistake or misidentification, please notify Seed&Spark’s Copyright Agent in writing. Your counter-notice must contain the following information (please confirm these requirements with your legal counsel or see the U.S. Copyright Act, 17 U.S.C. §512(g)(3), for more information):
a physical or electronic signature of the user of the Services;
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
a statement made under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
the subscriber's name, address, telephone number, and a statement that the subscriber consents to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the user will accept service of process from the person who provided notification or an agent of such person.
Under the Copyright Act, any person who knowingly materially misrepresents that material is infringing or was removed or disabled by mistake or misidentification may be subject to liability.
If you fail to comply with these notice requirements, your notification or counter-notification may not be valid.
Our designated copyright agent for notice of alleged copyright infringement is:
Attn: Copyright Agent
The Company may terminate your access to the Service, without cause or notice, which may result in the forfeiture and destruction of all information associated with your account. If you wish to terminate your account, you may do so by following the instructions on the Site. Any fees earned by and/or paid to the Company are non-refundable. All provisions of the Terms of Service and any other agreement, term or condition on the Site or that you otherwise agree to that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnities, hold harmless clauses, and/or limitations of liability.
XIV. Warranty Disclaimer
The Company has no special relationship with or fiduciary duty to you of any kind whatsoever and specifically disclaims any such duties. You acknowledge that the Company has no duty to take any action regarding any of the following: (i) which Users gain access to the Site; (ii) what Content Users access through the Site; (iii) what effects the Content may have on Users; (iv) how Users may interpret or use the Content; or (v) what actions Users may take as a result of having been exposed to the Content. The Company cannot guarantee the authenticity of any data or information that Users provide about themselves or their Projects. You release the Company from all liability for your having acquired or not acquired Content through the Site. The Site may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. The Company makes no representations concerning any Content on the Site, and the Company is not liable for the accuracy, copyright compliance, legality, or decency of material contained on the Service.
THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE COMPANY, AND ITS DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, AND CONTENT PROVIDERS DO NOT WARRANT THAT: (A) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (B) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (C) ANY CONTENT OR SOFTWARE AVAILABLE AT OR THROUGH THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS. YOUR USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK. SOME STATES OR COUNTRIES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Electronic Communications Privacy Act Notice (18 USC §2701-2711): THE COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED ON THE SITE OR ANY WEBSITE LINKED TO THE SITE. The Company will not be liable for the privacy of email addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on the Company’s equipment, transmitted over networks accessed by the Site, or otherwise connected with your use of the Service.
NO SECURITIES OR EQUITY INVESTMENTS MAY BE SOLD THROUGH SEED&SPARK, AND SEED&SPARK DOES NOT AUTHORIZE THE OFFERING, SALE OR PURCHASE OF SECURITIES OR EQUITY INVESTMENTS THROUGH THE SITE AND/OR SERVICE.
You agree to and shall defend, indemnify, and hold harmless the Company, its affiliates, and each of its and its affiliates’ employees, owners, managers, contractors, directors, suppliers, representatives and their respective successors and assigns from any and all liabilities, claims, damages and expenses, including reasonable attorneys' fees and costs and the advancement of same, incurred by any such releasee that arise from or relate to your use or misuse of, or access to, the Service, the Site, and/or Content, or otherwise from your User Submissions, any violation of the Terms of Service or other applicable agreements, terms and/or conditions, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you agree to and shall assist and cooperate with the Company in asserting any available defenses.
XVI. Limitation of Liability
IN NO EVENT SHALL THE COMPANY, ITS AFFILIATES, NOR ITS OR THEIR RESPECTIVE DIRECTORS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICE (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) ONE HUNDRED U.S. DOLLARS ($100.00). SOME STATES OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Accessing the Service is prohibited from territories where the Content is illegal. If you access the Service from any such location(s), you do so at your own initiative and are responsible for compliance with local laws.
XVIII. Electronic Delivery, Notice Policy, and Your Consent
By using the Services, you consent to receive from Seed&Spark or its affiliates all communications including notices, agreements, legally required disclosures, or other information in connection with the Services (collectively, "Contract Notices") electronically. Seed&Spark may provide the electronic Contract Notices by posting them on the Site. If you desire to withdraw your consent to receive Contract Notices electronically, you must discontinue your use of the Services.
XIX. Governing Law
These Terms of Service (and any further rules, policies, or guidelines incorporated by reference) shall be governed by and construed in accordance with the internal laws of the State of California and the United States, without giving effect to any principles of conflicts of law, and without application of the Uniform Computer Information Transaction Act or the United Nations Convention of Controls for International Sale of Goods. You agree that the Company, the Site, and the Service are deemed a passive website that does not give rise to personal jurisdiction over Seed&Spark or its parents, subsidiaries, affiliates, successors, assigns, employees, agents, managers, directors, officers or shareholders, either specific or general, in any jurisdiction other than the State of California. You agree that any action at law or in equity arising out of or relating to these terms, or your use or non-use of the Services, shall be filed only in the state or federal courts located in Los Angeles County in the State of California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You hereby irrevocably waive any right you may have to trial by jury in any dispute, action, or proceeding.
XX. Integration and Severability
These Terms of Service and other referenced material are the entire agreement between you and the Company with respect to the subject matter hereof (and thereof), and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and the Company and govern the future relationship between the parties hereto (whether as User, Project Owner or otherwise). If any provision (or portion thereof) of the Terms of Service or other agreements, terms or conditions are found to be unenforceable or invalid, such provision (or portion thereof) will be limited or eliminated to the minimum extent necessary so that the Terms of Service and other agreements, terms and conditions will otherwise remain in full force and effect and enforceable to the maximum legal extent. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
The Company shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond the Company’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation. The Terms of Service are personal to you, and are not assignable, transferable, or sublicensable by you except with the Company's prior written consent. The Company may assign, transfer, or delegate any of its rights and obligations hereunder without consent. No agency, partnership, joint venture, or employment relationship is created as a result of the Terms of Service or any other agreement referenced herein and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under the Terms of Service or such other agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under the Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by nationally-recognized overnight delivery service.
FISCAL SPONSORSHIP TERMS OF SERVICE
Last Updated: September 10, 2015
PLEASE READ THESE FISCAL SPONSORSHIP TERMS OF SERVICE (THIS “AGREEMENT” OR THE “FS TERMS OF SERVICE”, WHICH FS TERMS OF SERVICE ARE INCORPORATED INTO THE TERMS OF SERVICE AND MADE A MATERIAL PART THEREOF BY REFERENCE) CAREFULLY BEFORE USING THE SERVICES OFFERED BY SEED&SPARK, INC. (“SEED&SPARK” OR THE “COMPANY”). THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SITE AND/OR SERVICE WITH RESPECT TO ANY PROJECT UTILIZING FISCAL SPONSORSHIP, WHETHER YOU ARE A PROJECT OWNER, SUPPORTER, AND/OR USER. ANY TERM USED BUT NOT DEFINED HEREIN SHALL HAVE THE MEANING ASCRIBED TO IT IN THE COMPANY’S TERMS OF SERVICE, WHICH CAN BE FOUND ABOVE, TO WHICH YOU ARE ALSO BOUND.
Company is a multi-faceted entity that, among other endeavors, provides funding facilitation to independent filmmakers and desires to so provide such services to filmmakers with and through fiscal sponsors; and
Company has arrangements with certain charitable, not-for-profit, and/or 501(c)(3) organizations (each a “Sponsor” or collectively, “Sponsors”) that offer, provide, or intend to provide fiscal sponsorship for certain Projects that plan to or are currently pursuing funding facilitation through Company.
For the consideration provided for herein and in the Terms of Service, and other good and valuable consideration the receipt and sufficiency of which is agreed upon, you agree as follows:
Company may, at Company’s sole option and in Company’s sole discretion from time to time, make available certain Projects for fiscal sponsorship application with a Sponsor, which Projects shall each be subject at all times to both Company’s and the applicable Sponsor’s independent terms and conditions. Company understands and agrees that each Project made available to a Sponsor must complete Sponsor’s fiscal sponsorship application process and be approved for fiscal sponsorship, which process shall be in such Sponsor’s sole discretion pursuant to its policies, application procedures, and applicable laws, rules and regulations. Company may assist you with any such Project, whether related to Sponsor’s application process, providing support for such a Project, or otherwise; provided, however, that you understand and agree to be subject at all times to the terms and conditions of this Agreement and any Sponsor guidelines, rules, and/or requirements with respect to an applicable Project. In no instance, however, will Company be required by this Agreement or otherwise to continue to work on and/or support any Project. By accepting these terms, you agree not to and will not use the Company’s or Sponsor’s name, brand(s), and/or intellectual property of any kind or nature except as specifically allowed by Company and/or Sponsor, and in any event will never use same in a negative, disparaging, ridiculing, mocking, or defamatory manner (regardless of the veracity or purported veracity of such use), which restriction shall extend to your owners, managers, employees, agents, and/or legal representatives.
3. Term; Acceptance of Terms
Your agreement to the terms and conditions provided for herein shall commence upon your acceptance of same by “checking-the-box” regarding fiscal sponsorship and/or however else the Company reasonably requires your agreement to such terms/conditions, and shall continue thereafter indefinitely (the “Term”). If you do not agree to the terms and conditions provided for herein, you shall not be allowed to participate with or in any Sponsor-affiliated Project through the Company.
4. Limited Agent
Sponsors have appointed Company as Sponsors’ nonexclusive agent for the limited purpose of receiving pledges on behalf of certain Projects approved for fiscal sponsorship by a Sponsor. With respect to each such approved Project, Company has agreed to report to Sponsor each pledge and to provide Sponsor with such pledges in a timely manner, less only Company’s fees. You understand and agree that Company’s fees with respect to any Project are up to 5% of funding actually obtained through Company with respect to such Project, all pursuant to these terms and conditions and the Terms of Service.
5. Independent Contractor
You understand and agree that other than the limited agent role specifically provided for in Section 4 above, the relationship of the Company and a Sponsor shall be that of independent contractor and not as an employee, agent, representative (legal or otherwise) of the other for any purpose whatsoever, and neither party is or shall be liable for any benefits, taxes, or any other payments and/or obligations of the other party. This Agreement shall not be deemed to create any relationship of partnership, joint venture, or other agency between you and the Company or any Sponsor, and you agree not to and shall not make any representation to such effect. You understand and agree that Company, as a service provider to each Project, accepts certain fees in connection with each such Project.
6. Disclaimers; Limitation of Liability; Indemnification
(A) Company hereby disclaims any and all responsibility, obligation and/or liability with respect to Sponsor’s fiscal sponsorship of each Project (if and as applicable), and you understand and agree that at all times during the Term, Sponsor is solely responsible for maintaining its non-profit status (including without limitation its 501(c)(3) status, if applicable); failure by Sponsor to so maintain such status shall in no event be Company’s responsibility and, to the extent you contribute to or have any involvement in such failure (by your use of the Service or otherwise), you hereby release and waive any and all claims you may have against Company pertaining to same.
(B) You understand and agree that Company is a for-profit entity and does not offer fiscal sponsorship as part of its services, and if you choose to be associated with a Project that is fiscally sponsored or otherwise associated with a Sponsor, you do so with full knowledge of same and you knowingly and willingly accept any risks associated with same. Company makes no representations or warranties including without limitation with respect to the tax implications, if any, of working with or being a part of a Sponsor-affiliated Project. You hereby indemnify and hold Company harmless for and against any and all damages, liability, claims, proceedings, and/or costs/expenses incurred by you with respect to any Sponsor-affiliated Project.
(C) You acknowledge that the disclaimers and protections contained in this Section 6 are reasonable and necessary in order to protect Company’s legitimate business interests, and that any violation of these provisions by you would result in damages to Company, for which you hereby agrees to and shall indemnify Company (including for related attorneys’ fees and costs). This Section 6 shall survive indefinitely.
7. Governing Law; Venue
The provisions of these FS Terms of Service shall be construed in accordance with, and governed by, the laws of the internal laws of the State of California without regard to principles of conflicts of laws. You agree that any dispute concerning or pertaining to this Agreement shall be brought in the State or Federal Courts located in the County of Los Angeles, State of California.
If any provision of this Agreement or the application thereof is held invalid, the invalidity shall not affect other provisions or applications of the Agreement which can be given without effect without the invalid provisions or applications and to this end the provisions of this Agreement are declared to be severable. The headings of in this Agreement are for convenience only and shall not be used to interpret the terms of this Agreement. Your acknowledgement of these FS Terms of Service in the manner provided for by the Company shall be deemed your acceptance and approval of same. You represent and warrant that you have the requisite authority to agree to this Agreement and abide by and be bound by its terms.
9. Waiver of Breach
No waiver of any breach of any term or provision of this Agreement shall be construed to be, nor shall be, a waiver of any other breach of this Agreement. No waiver shall be binding unless in writing and signed by the party waiving the breach.
This Agreement is an integrated document and constitutes and contains the complete understanding and agreement of the parties with respect to the subject matter addressed herein. To the extent this Agreement is applicable to you, in the case of any conflict between any provision (or portion thereof) of these FS Terms of Service and the Terms of Service, this Agreement shall govern with respect to such provision (or portion thereof) only, and you agree to continue to be bound by all other provisions hereof and/or in the Terms of Service.
If you have any questions regarding these Terms of Service, please feel free to contact the Company.
STREAMING AGREEMENT TERMS OF SERVICE
Updated March 23, 2017
PLEASE READ THIS STREAMING AGREEMENT CAREFULLY. THIS STREAMING AGREEMENT GOVERNS YOUR ACTIONS AS A FILMMAKER MAKING YOUR WORK AVAILABLE FOR STREAMING THROUGH THE SEED&SPARK WEBSITE AND RELATED SERVICES.
Welcome to Seed&Spark, a Delaware corporation (“Seed&Spark”, “us” or “we”) social network, crowdfunding platform, streaming platform, and digital distribution platform consisting of websites, services, software applications, embeddable players, and/or syndicated widgets (the “Seed&Spark Services”).
This Streaming Agreement (the “Streaming Agreement”) for the Seed&Spark Services is a legal contract between you, an individual user of at least 18 years of age or a single entity (“you”, “User”, “user”, “Filmmaker” or, collectively, “Users”, “users” or “Filmmakers”), and Seed&Spark regarding the provision and streaming of your content via the Seed&Spark Services.
The Seed&Spark Services allow certain users called Filmmakers to distribute and display their films in the form of streaming videos (the “Films”) and to distribute, post and display textual and photographic comments (“Filmmaker Comments”) and personally identifiable information commonly known as name and likeness (“Filmmaker Name and Likeness”). Films, Filmmaker Comments and Filmmaker Name and Likeness, together with all other text, files, images, photos, video, sounds, musical works, works of authorship, applications, preview clips and artwork created from Films, Filmmaker Comments and Filmmaker Name and Likeness (pursuant to this Agreement) or any other materials submitted, displayed, published, posted or transmitted through or on the Seed&Spark Services by Filmmakers are collectively referred to as “Filmmaker Submissions”.
The “Effective Date” of this Streaming Agreement is the date upon which you submit any Filmmaker Submissions to Seed&Spark for streaming.
II. Incorporation by Reference.
III. Modification of this Streaming Agreement.
We may modify or amend this Streaming Agreement at any time. We shall use our best efforts to notify you of any such amendment, but our inadvertent failure to so notify you shall not be deemed a breach of this Streaming Agreement or any of your rights.
IV. Filmmaker License Grant.
Although you retain all ownership in your Filmmaker Submissions, you hereby grant Seed&Spark the worldwide, fully assignable, unrestricted, non-exclusive (except with respect to free streaming as provided for herein), royalty-free rights and licenses for the duration of the Term (as defined hereinbelow) solely to:
(i) create preview clips and artwork from your Filmmaker Submissions and make available your preview clips and artwork via the Seed&Spark Services to users;
(ii) encode, transcode, compress or convert your Filmmaker Submissions into any format, any bit rate, and using any Codec now known or later developed;
(iii) store your Filmmaker Submissions on one or more servers in order to deliver streams, display your Filmmaker Submissions to users and for routine archival purposes;
(iv) use and publish, and to permit others to use and publish, the name(s), trademarks, likenesses and biographical materials of you and all persons rendering services in connection with your Filmmaker Submissions;
(v) edit, reproduce, distribute, publicly perform, stream (including without limitation by SVOD), display, transfer and host your Filmmaker Submissions (and/or portions thereof) for Seed&Spark promotional purposes only (no material or substantive changes will be made by us to the complete Filmmaker Submissions without Filmmaker’s prior approval); and
(vi) publicly perform any musical compositions that may be embodied in the Filmmaker Submissions; and
(vii) edit and reproduce any musical compositions that may be embodied in the Filmmaker Submissions.
Such rights and licenses will apply to any form, media, or technology now known or hereafter developed.
By distributing or disseminating Filmmaker Submissions through the Seed&Spark Services, you hereby grant to each user of the Seed&Spark Services that is authorized to access your Filmmaker Submissions a personal, non-exclusive license to access and view your Filmmaker Submissions. You represent and warrant that you have all rights and authority to grant the rights and licenses provided for herein, and to agree to this Streaming Agreement and abide by its terms; any violation by you of the foregoing representation and warranty shall be deemed a material breach of this Streaming Agreement, for which the indemnification, defense, and hold harmless provisions hereof and as provided for in the Terms of Service shall apply.
V. The Term.
The time period that this Streaming Agreement is in effect begins on the Effective Date and continues for a minimum term of two (2) years and which shall automatically renew for successive additional one (1) year terms (the “Term”); provided, however, that Filmmaker shall have the right to terminate such automatic renewal if written notice of same is provided to us at least forty-five (45) days prior to the expiration of any such term or renewal term (as applicable); provided further, however, that Filmmaker shall have a one-time option to terminate the Term as of the date that is six (6) months after the Effective Date by providing advance written notice of at least thirty (30) days to us prior to such 6-month anniversary. We can terminate this Streaming Agreement at any time by sending you a notice of our intention to terminate.
VI. Data and Metrics.
Seed&Spark is the sole owner of all data and metrics it observes or collects during or after the Term as part of providing the Seed&Spark Services or otherwise. Upon written request, Seed&Spark agrees to share all data and metrics information to the Filmmaker with respect to such Filmmaker’s Filmmaker Submissions only, on no less than a quarterly basis; provided, however, that Seed&Spark shall at all times retain ownership of such information unless otherwise agreed in writing signed by us and Filmmaker. Filmmaker agrees to and shall not disclose any such information without approval from Seed&Spark.
VII. Filmmaker Payments.
Seed&Spark subscribers will pay a fee to subscribe to view your Film(s) (“Subscribers”). Payments to you based on viewings of your Filmmaker Submissions will be subject to and in accordance with Seed&Spark’s standard pricing models (i.e. how much we charge the Subscribers), which are subject to adjustment at any time, with or without notice, by Seed&Spark. Seed&Spark will be entitled to and shall retain forty percent (40%) of all gross revenue earned from your Filmmaker Submissions’ streaming on the Seed&Spark platform. From the remaining sixty percent (60%) of gross revenue, you will receive a pro-rata share of such amounts based on minutes watched by Subscribers of your Filmmaker Submissions as determined by Company pursuant to its regular record-keeping methods and procedures. Your portion of such amounts shall be deemed the “Filmmaker Payments” and you will accounted to on a quarterly basis (within 30 days of the end of each quarter) and paid sums due to you if and to the extent any such revenue is earned by you. You and we agree that the Filmmaker Payments shall be net of any and all associated fees or charges (e.g., credit card fees and stripe processing fees) with respect to your Filmmaker Submissions and any other deductions made by us pursuant to the terms and conditions herein and on the Seed&Spark Services. We reserve the right to withhold payment if we in good faith determine that additional documentation is necessary to make the payment (e.g. W-9 or identification). You agree that you will be responsible for all taxes incurred as a result of the Filmmaker Payments and indemnify and hold us harmless for any liability with respect to same.
VIII. Filmmaker Conditions Precedent and Representation
Filmmaker has and hereby grants to Seed&Spark all of the rights necessary to comply with the terms of this Streaming Agreement, for Seed&Spark to perform its obligations hereunder, and with respect to the Seed&Spark Services. Filmmaker represents that Filmmaker has not offered or allowed, and will not during the Term offer or allow, the Filmmaker Submissions to be streamed for free elsewhere.
The indemnification, defense, and hold harmless provisions of this Streaming Agreement shall survive termination or expiration of this Streaming Agreement, as shall those provisions serving to limit Seed&Spark’s liability hereunder.
If we receive a claim that our distribution of your Filmmaker Submissions or any other materials provided or authorized by you violates any third party rights or if a claim arises from your breach or alleged breach of the representations, warranties, covenants, or agreements made by you herein, you agree to fully indemnify and hold us harmless, and upon our request, defend us and our licensees and affiliates (and our and their respective directors, officers, shareholders, members, employees, agents, representatives, and contractors), collectively the “releasees”, from and against any and all losses, liabilities, damages, costs and/or expenses (including reasonable attorneys’ fees and costs) concerning any such claim and any resulting liability therefrom. Accordingly, you agree to reimburse the releasees on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this paragraph. We will use reasonable efforts to promptly notify you of any such claim, and by obtaining, posting and maintaining an adequate bond for our benefit you may assume control of the defense of such claim, provided that we will have the right in all events to participate in the defense thereof. Additionally, you agree to indemnify, defend, and hold the releasees harmless from and against anything including all losses or liabilities (including reasonable attorneys’ fees, costs, and expenses) arising out of any claims by any person that relates to your withdrawal of your Filmmaker Submissions (such as claims alleging unfair business practices, or price discrimination).
This Streaming Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Seed&Spark without restriction. Any assignment attempted to be made in violation of this Streaming Agreement shall be void. This Streaming Agreement will be binding on the assigns, heirs, executors, personal representatives, administrators, and successors (whether through merger, operation of law, or otherwise) of each of the parties.
This Streaming Agreement will be governed and interpreted in accordance with the internal laws of the State of California applicable to agreements entered into and to be wholly performed therein, without regard to principles of conflict of laws. Any and all disputes, claims or controversies arising out of or related to this Agreement ("Disputes") shall be submitted first to non-binding mediation. If the Disputes are not resolved through mediation, then, upon the election of either Party, the Disputes shall be submitted for binding arbitration. Unless the parties agree otherwise, any mediation and/or arbitration shall take place in the State of California, City of Los Angeles, and shall be administered by, and pursuant to the rules of, JAMS Alternative Dispute Resolution.
Disclaimer of Liability:
READ THE FOLLOWING CAREFULLY AS IT LIMITS OUR LIABILITY.
The Seed&Spark Services are provided “AS IS,” without warranties of any kind. We expressly disclaim any representations and warranties, including without limitation, the implied warranties of merchantability and fitness for a particular purpose. We shall have absolutely no liability in connection with the Seed&Spark Services or any other services provided by Seed&Spark including without limitation, any liability for damage to your hardware, software, and business resulting from the Seed&Spark Services or otherwise.
We make no warranty, representation or guaranty as to Seed&Spark Services. We make no warranty, representation or guaranty that theSeed&Spark Services will be uninterrupted or error free or that any defects can be corrected.