These Motion Array Terms of Service (the “Terms of Service”) constitute a legally binding agreement by and between 404 Media, LLC, a limited liability company organized and existing under the laws of the State of Georgia, USA, and doing business as Motion Array (“Motion Array”) and you (“Licensee” or “You”), concerning the Motion Array Products (as such term is defined below).
For purposes of these Terms of Service:
“Digital Media Files” are any images, animations, films, videos, or other audio/visual representations recorded in any computer-readable format or form that are obtained, directly or indirectly, from Motion Array.
“Intellectual Property Rights” shall mean all rights of authorship, all copyrights (including rights in applications or registrations), all rights of attribution and integrity and other moral rights, all rights of inventorship, all rights in patents and patent applications, all trademark rights (including rights in applications or registrations), all rights in trade secret and proprietary information, and all other intellectual property rights of any type, whether registered or registerable or not in any country.
“Motion Array Products” means the Digital Media Files, the Services, and the Motion Array Software.
“Motion Array Software” means the software extensions of Third Party Software that are identified as “Plug-Ins” and available to Licensees by download by means of the web site maintained by Motion Array at www.motionarray.com.
“Services” means the file-sharing/website development service provided by Motion Array and known as Review, and the portfolio website development service provided by Motion Array and known as Portfolio, as such services may be modified and/or re-branded by Motion Array from time to time in its sole discretion.
“Third Party Software” means any software proprietary to a Third Party Software Provider, including the timeline-based video editing software application known as Premier Pro that is proprietary to Adobe Systems Incorporated.
“Third Party Software Provider” means any party other than Motion Array that provides its proprietary software to authorized users.
“Use” means to access, install, download, copy, distribute, modify, make use of, or otherwise benefit from using the functionality of any of the Motion Array Products.
2. Grant of License
a. For Licensees choosing a paid subscription (whether monthly or annually) to the Motion Array Products, subject to the terms and conditions herein stated and subject to payment by Licensee of the Purchase Price, Motion Array hereby grants the Licensee a non-exclusive, non-transferable royalty-free license to Use an unlimited number of the Motion Array Products.
b. For Licensees choosing a free subscription, subject to the terms and conditions herein, Motion Array hereby grants the Licensee a non-exclusive, non-transferable royalty-free license to the Digital Media Files that are designated by Motion Array as free files. The foregoing license shall not include access to the Services and/or the Motion Array Software.
c. The Digital Media Files and the work product of the Services and/or the Motion Array Software may be incorporated into a derivative work such as a film feature, video, broadcast, multimedia, advertisement, live performance, Internet, presentation, or print project. Licensee may use the Motion Array Products on a server, image library, or network configuration to be viewed by Licensee.
d. Any download or other use of any Motion Array Product shall be solely for specific and immediate use of such product by Licensee; warehousing, aggregation, and any other downloading for contingent future use is strictly prohibited.
e. Anything that Licensee produces using any of the Motion Array Products must be for the use of Licensee and its end-users only. Licensees that desire a multi-seat site license for use by multiple users must contact Motion Array for rates and terms and conditions for such use.
f. If an agent or an employee of an employer executes these Terms of Service, the term “Licensee” shall include both the agent/employee and the employer jointly and severally. These Terms of Service are enforceable against You and any legal entity that obtains Digital Media Files or utilizes any of the Services and/or any of the Motion Array Software or on whose behalf they are used.
3. Scope of License Restrictions
Licensee hereby agrees that it will not under any circumstances:
a. Use, sell , license, reproduce, distribute, or display the Digital Media Files or the work product of the Services and/or the Motion Array Software as templates, stand-alone backgrounds, stock elements, or effects imagery elements made available as downloadable files or included in any other clip media/stock product, library, collection, or set of clips for distribution or resale, or in a manner that permits Licensee’s end users to extract the Digital Media files or the work product of the Services and/or the Motion Array Software as stand-alone files;
b. Rent, lease, lend, sell, or sublicense any of the Motion Array Products to another person, company, or other entity;
c. Include the Digital Media Files or the work product of the Services and/or the Motion Array Software in an electronic template intended to be used by third parties on electronic or printed products, where the purpose is to create multiple impressions, including: website designs, presentation templates, electronic greeting cards, business cards, or any other electronic or printed matter without obtaining a license for such purpose from Motion Array;
d. Sublicense, sell, assign, convey, or transfer any of its rights under these Terms of Service except as specifically provided herein;
e. Incorporate the Digital Media Files or any work product of the Services and/or the Motion Array Software into a logo, trademark, or service mark;
f. Distribute, post, or upload the Digital Media Files or the work product of the Services and/or the Motion Array Software online in a downloadable format or enable it/them to be distributed via mobile telephone or other electronic devices;
g. Post, upload, or transfer any Digital Media Files or the work product of the Services and/or the Motion Array Software in any form on websites offering customization services (for example, Fiverr.com, Youtube.com, and Vimeo.com);
h. Use any Digital Media Files or the work product of the Services and/or the Motion Array Software in an automated system, including online websites, other than in connection with the Services; or
i. Decompile, reverse engineer, disassemble, or otherwise reduce the Digital Media Files or the work product of the Services and/or the Motion Array Software to a human readable form.
4. Manner of Use Restrictions
Licensee hereby agrees that it will not:
a. Use any of the Motion Array Products in a way that would defame, malign, slander, libel, or vilify any person or group of persons or any countries, races, customs, cultures, religions, or governments;
b. Use any Motion Array Product in connection with any pornographic materials or in any other manner that would be deleterious or damaging to the reputation of Motion Array;
c. Engage in screen scraping of the Motion Array Products or any similar automated process for the capture or conversion of electronic files; or
d. Use any of the Motion Array Products with a model and in a manner that would lead a reasonable person to believe that the model personally uses or endorses a product or service, or if the depiction of the model is used in connection with a subject that would be unflattering, embarrassing, or unduly controversial to a reasonable person, unless Licensee accompanies each such use with a conspicuous statement that indicates that the person is a model and the Digital Media Files and/or the work product of the Services and the Motion Array Software are being used for illustrative purposes only.
5. Reservation of Rights
Except as expressly granted herein, all right, title and interest to the Motion Array Products and any Intellectual Property Rights related thereto are retained by Motion Array, and all right, title and interest to the Third Party Software and any Intellectual Property Rights related thereto are retained by such Third Party Software Provider. The copyrights in all Motion Array Products are owned by Motion Array or its licensors, and the copyrights in all Third Party Software are owned by such Third Party Software Provider or its licensors, and in all cases are protected by United States copyright laws, international treaty provisions and other applicable laws. Motion Array’s trademarks and service marks, including “Motion Array,” may not be used or associated with any of Licensee’s derivative products created from Digital Media Files or by means of the Services or the Motion Array Software without Motion Array’s written consent, which Motion Array may grant or deny in its sole discretion.
6. Allegations of Copyright Infringement
If You believe that any Digital Media File or the work product of the Services and/or the Motion Array Software infringes your copyright, You must communicate the following information to Motion Array in the manner specified below:
a. Identify the copyrighted work You believe has been infringed and the material that You allege is infringing the copyrighted work, being as specific as possible.
b. Explain what the affected user would need to do in order to remedy the infringement, being as specific as possible – whether the needed action is adding a statement of attribution, deleting specific elements of the file, or deleting the entire file.
c. Provide your contact information, including your email address, name, telephone number, and physical address.
d. Provide contact information for the alleged infringer, if known.
e. Include the following statement: “I have a good faith belief that use of the copyrighted materials described above on the infringing web pages is not authorized by the copyright owner, or its agent, or the law. I have taken fair use into consideration. I swear under penalty of perjury that the information in this notification is accurate and that I am the copyright owner, or am authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.”
f. Include your physical or electronic signature.
Submit your complaint, preferably by email to [email protected]. You may also submit your complaint by physical mail, although it will take substantially longer for us to receive and respond to your complaint, to the following address: Motion Array, P.O. Box 2213, Decatur, GA 30031.
7. Licensee Representations and Warranties
a. Licensee hereby represents that its use of the Motion Array Products will comply at all times with all applicable laws, rules, and regulations of any country, state, province, or other jurisdiction, including the export laws and regulations of the United States of America (the “Export Laws”).
b. Licensee hereby represents that it is not a citizen or otherwise located within an embargoed nation (including Iran, Syria, Sudan, Libya, Cuba, and North Korea) and that it is not otherwise prohibited under the Export Laws from using any of the Motion Array Products.
8. Third Party Software
a. Licensee hereby acknowledges and agrees that its usage of the Motion Array Software is subject to the applicable terms and conditions of usage and/or end user license provisions of the provider of the applicable Third Party Software, in addition to such usage being subject to these Terms of Service. Licensee further acknowledges and agrees that its usage of the Motion Array Software will comply in all aspects with such third party terms and conditions of usage and/or end user license provisions.
b. Motion Array hereby disclaims any warranty and/or liability with regard to the performance of any of the Third Party Software. In the event of any suit, claim, damages or liability relating to Licensee’s usage of the Third Party Software, Licensee’s sole remedy, if any, shall be with the Third Party Software Provider.
9. Subscription Billing
a. Use of Motion Array Products is provided to Licensee by subscription. Your subscription is effective for the period covered by your subscription fee (which is your Purchase Price) as disclosed in the enrollment process and continues upon your payment in advance of the renewal fee for the applicable period (i.e., monthly or annually).
b. Renewal fees for your subscription will automatically be charged at the then-current rate to the credit card or other billing source authorized by You on the first day of each successive subscription term until you cancel your subscription. Renewal will occur without prior notice to you. Motion Array reserves the right to change the subscription fee for any renewal term, with or without notice to You, to be effective upon the renewal of your subscription for the next applicable period.
c. The Purchase Price, including subscription or enrollment fees, is non-refundable.
d. Should You choose to discontinue your subscription for any reason before expiration of the then-applicable subscription term for which you have paid, You may cancel your subscription and terminate further billing by logging in to your account and changing your settings under the “My Account” page. Access to previously downloaded files at MotionArray.com will be revoked upon downgrading your account to a free plan.
10. File Storage
The Services include file storage, with the maximum amount of file storage determined by the level of subscription chosen by Licensee as part of the enrollment process. For Licensees that choose the free subscription service, the foregoing file storage is solely for a period of thirty (30) days beginning on enrollment. Licensee has the option at any time to upgrade to a paid subscription, and in the event that Licensee upgrades its account during such period, the files will be maintained by Motion Array in accordance with the paid level of subscription. If Licensee does not upgrade to a paid subscription during such thirty (30) days period, all files maintained by the Services will be deleted by Motion Array at such time without notice to Licensee.
Motion Array reserves the right to block or terminate a Licensee’s access to the Motion Array Products without notice at any time if it determines in its sole discretion that a Licensee is violating any of the terms and conditions of these Terms of Service. Motion Array also reserves the right for any reason or no reason to refuse to renew a subscription with or without prior notice.
12. Exclusion of Damages; Limitation of Liability
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW: A) IN NO EVENT SHALL MOTION ARRAY OR ANY THIRD PARTY SOFTWARE PROVIDER BE LIABLE TO LICENSEE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE ANY OF THE MOTION ARRAY PRODUCTS; AND B) THE AGGREGATE LIABILITY OF MOTION ARRAY AND THE THIRD PARTY SOFTWARE PROVIDER IN CONNECTION WITH THESE TERMS OF SERVICE AND LICENSEE’S USE OF THE MOTION ARRAY PRODUCTS SHALL BE STRICTLY LIMITED TO THE PURCHASE PRICE PAID BY LICENSEE THEREFOR.
Licensee hereby agrees to defend, indemnify, and hold harmless Motion Array and any Third Party Software Provider, their directors, officers, employees, and agents, and their assigns and successors-in-interest, from and against any and all liability, damages, losses, claims, demands, actions, causes of action, or costs (including attorneys’ fees and expenses) arising out of or resulting from: a) Licensee’s use of any of the Motion Array Products; b) breach of these Terms of Service by Licensee or its directors, officers, employees, contractors or agents or their permitted assigns or successors-in-interest (collectively the “Licensee Parties”; or c) any negligent or intentional act or omission by any of the Licensee Parties.
14. No Warranty; Transfer Limitations; Audit Rights
a. The Motion Array Products are being delivered to Licensee “AS IS.” Motion Array makes no warranty as to use or performance of the Motion Array Products or the Third Party Software, including quality of image or compatibility with any computer hardware or other equipment, operating system, or software program, and hereby disclaims all warranties, express or implied, whether by state, common law, custom, usage, or otherwise, including warranties regarding noninfringement of third party rights, merchantability, and fitness for any particular purpose.
b. Licensee acknowledges and agrees that: i) its usage and ability to access the Motion Array Products may at times be limited ore restricted due to channel carrying capacity or data transfer speeds (sometimes referred to as bandwidth limitations) related to the technical capacities of Motion Array and/or third parties; and ii) Motion Array and such third parties are not liable in any manner for such limitations or restrictions.
c. Motion Array reserves the right to audit Licensee’s usage of the Motion Array Products from time to time in order to verify Licensee’s full compliance with these Terms of Service. Licensee agrees that upon notice from Motion Array it shall provide such information and records as is reasonably requested by Motion Array in connection with such audit or audits.
15. Governing Law; Jurisdiction
These Terms of Service shall be interpreted, enforced, and governed by the laws of the State of Georgia, USA, without regard to the choice of law rules of any country, state, province, or other jurisdiction. The parties hereby expressly waive the applicability of the UN Convention for the International Sale of Goods. Unless Motion Array elects arbitration pursuant to Section 16, all disputes relating to or regarding these Terms of Service or termination thereof shall be submitted to the exclusive jurisdiction of the state courts and federal courts sitting in Fulton County, Georgia, USA, and Licensee irrevocably consents to such personal jurisdiction and waives all objections thereto.
16. Optional Arbitration
In the event of a dispute relating to or regarding these Terms of Service, Licensee’s use of the Motion Array Products, or termination of Licensee’s access to the Motion Array Products, Motion Array may at its sole discretion and option cause the dispute to be resolved by means of arbitration before a single arbitrator pursuant to arbitration in Atlanta, Georgia, USA, and pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Should Motion Array elect arbitration hereunder, the decision of the arbitrator shall be final and binding.
17. Attorney’s Fees
In the event that Motion Array institutes any suit against Licensee for any violation of or to enforce these Terms of Service, including collection of any fees due hereunder, or should Motion Array intervene in any suit to enforce or protect its interest or rights hereunder, Motion Array shall be entitled to all of its costs and expenses in connection therewith, including reasonable fees of its attorneys, if and to the extent permitted by law.
18. Binding Nature; Assignment
These Terms of Service constitute a binding agreement between Motion Array and Licensee, and shall bind the parties and their permitted heirs, executors, administrators, successors, and assignees. These Terms of Service are personal to Licensee and may not be assigned or transferred by Licensee, whether by consent of Licensee or by operation of law. Motion Array may assign these Terms of Service in its sole discretion, including but not limited to in connection with the sale or other transfer of all or substantially all of its assets or equity interests, whether by sale, merger, or otherwise.
a. Amendments. Motion Array reserves the right to amend these Terms of Service from time to time and at any time at its sole discretion; such amendments shall be effective upon the earlier of: i) Motion Array providing notice to Licensee; and ii) the publication by Motion Array of the amended Terms of Service on the Motion Array web site.
b. Severability. If any term or provision of these Terms of Service, or any portion thereof, or the application thereof to any person(s) or circumstances, shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of these Terms of Service, or the application of such term or provision to persons or circumstances other than those as to which it is so judicially held to be invalid or unenforceable, shall not be affected thereby, and each term and provision of these Terms of Service shall be valid and be enforceable to the fullest extent permitted by law.
c. No Waiver. The failure of Motion Array to seek redress for violation of or to insist upon the strict performance of any covenant or condition of these Terms of Service shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
d. Notices. Written notices hereunder given by Motion Array to Licensee may be delivered via email to the email address associated with the Licensor’s account in Motion Array’s records or in a hardcopy writing to Licensor’s contact address maintained in its account with Motion Array and deposited in the U.S. mail, certified with return receipt requested, and such notices shall be deemed delivered immediately in the case of email or within three (3) days if deposited in the U.S. mail with adequate postage.
e. Relationship of the Parties. The parties are independent contractors, and these Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
f. Entire Agreement. These Terms of Service constitute the entire agreement between Licensee and Motion Array regarding the subject matter hereof, and supersede all previous or contemporaneous agreements, understandings, discussions, or representations regarding the subject matter hereof, whether oral or in writing.
g. Construction. The headings contained in these Terms of Service are for reference purposes only and shall not in any way affect the meaning or interpretation hereof. Whenever the words “include,” “includes,” or “including” are used in these Terms of Service, they shall be deemed to be followed by the words, “without limitation.” All references to sections shall refer to sections of these Terms of Service unless otherwise indicated.