Mezzato Inc. located at 39 Mesa St. Suite 101, San Francisco, California 94129, ("Mezzato", "We", "Our" or "Us") maintains a website, www.cutcaster.com ("Cutcaster", "Website"), through
which it provides services to you ("You" or "Your") and other users which allow You to either (1) upload digital media for the purpose of allowing Cutcaster to act as agent for licensing said digital media rights to other
users and/or (2) purchase licensing rights to use photos, vectors, images, footage and/or audio files uploaded by other users of the Website (collectively, the "Service" or "Services"). You acknowledge that the Website
contains photos, images, vectors, clipart, footage and information, including video files, creative art, 3-D animations, computer animations, motion graphics, camera acquired footage, flash files, data files, music, sound effects and other
material (collectively, "Content") which is protected by copyright or other proprietary rights that belong to Us or other users. Content is provided to Us by users who must enter a Contributor Agreement (referred to as a "Contributor Agreement") subject to the provisions of these Terms
and Conditions and the Contributor Agreement. In order to upload Content on the Website, the Content You upload
must be owned by You in its entirety, You must accept these Terms and Conditions, You must enter into theContributor
Agreement. In order to download Content, You or other users must agree to accept these Terms and Conditions and enter into our Image License Agreement (a "Content
which sets forth the terms for Your usage of the Content.
You must be at least 18 years of age to upload Content. We may require proof that You are at least 18 years of age. If You are a minor, You can access the Service only by having Your parent or legal guardian register on Your behalf. By doing so, the parent or legal guardian authorizes You to use the Services and agrees to be bound personally by these Terms and Conditions. We may elect, in Our sole discretion, to monitor Your usage of the Services and the Website for compliance with these Terms and Conditions or for any other reason.
2. Uploading Content
If You upload Content to the Website, You agree to give Cutcaster and all users which enter into a Content License from Cutcaster irrevocable, nonexclusive rights to use the Content for any purpose including publication, display, modification, and creation of derivative works. We have the right to license any Content uploaded by You until the time that You remove the Content from the Website. Once Content is submitted for approval and approved, You may not remove the Content from the site until it has been posted for 90 days.
(a) Purchasing a license. You may purchase Content from the Cutcaster website after registering as a User, accepting these Terms and Conditions and agreeing to a Content License Agreement. Content may be purchased online by purchasing with any major credit card, via site credits, via Paypal or via invoicing. The price of the Content You purchase will be the price specified on the Website at the time it is placed into your checkout cart or at the time of purchase or determined by the Cutcaster staff, who have final determination of price, at the time of licensing.
(b) Selling royalty free Content. If you have uploaded Content, and rights in it are purchased by other users, You will be entitled to receive the royalty specified on the Website or by separate schedule for each file downloaded. Royalty payments will be made through Paypal or Check and are outlined in the Royalty Payments section of Cutcaster.
You must own the copyright to all Files and Content which You upload. Generally, this means either (1) that You are the individual that created the original content, or (2) the copyright of the Files and Content has been assigned to You by the individual or entity that created it. The copyright of all Content uploaded by You is retained by You.
5. Member Warranties and Responsibilities
(a) Registration. You warrant that You have provided accurate, complete, and updated information in completion of Your registration and agree to update Your information from time to time so that it stays accurate.
(b) Account Responsibility. When You register at the Website You will receive a password and a user account ("User Account"). You are entirely responsible for any and all activities conducted through Your User Account and any User-names associated with that User Account. You may allow other individuals to use the User Account so long as You supervise such individual and assume all legal responsibility for their use of the Website. You agree to notify us immediately of any unauthorized use of Your password or and any other breach of security.
(c) Member Names. Upon Your registration at the Website, You may be asked to choose a user name to identify Yourself to other users and Our staff. You may not select or use another users' name (unless it is also Your name), or a name which violates any trademark right, copyright, or other proprietary right, which may cause confusion or is illegal. If, in Our sole discretion We find that Your user name is offensive to others, We reserve the right to delete it or require that it be deleted.
(d) Denial of Website usage. If You have been terminated You may not utilize the Services or access the Website in any manner or for any reason without Our express written consent. You may not knowingly allow any terminated user access to Your account(s).
(e) Content Ownership. You warrant that You own the copyright of any Content and Files which You upload.
(f) Restrictions on Content. You warrant that the Content does not violate any laws, does not depict the violation of any laws, is not offensive or intended to harass, threaten or cause discomfort to any person or entity, and does not contain any nudity or anything that is sexually explicit.
(g) Required Releases. By uploading a model or property release or otherwise representing that subjects depicted in the content have consented to publication for whatever purpose, You warrant that the information contained in such release is authentic, complete and accurate.
6. No Refunds
Purchases are non-refundable. If an exception to this rule is granted, there will be a $2 processing fee assessed due to costs imposed upon us a result of the transaction.
You agree to indemnify us, Our officers, directors, employees, affiliates, agents and representatives, from any and all claims based on allegations which, if true, would constitute a breach of these terms and conditions from any and all liabilities, losses, damages, expenses (including attorneys' fees and costs) and damages in consequence thereof. We reserve the right, at Our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification, and this shall not excuse Your obligations under this Section.
8. Control of Information and Content
(a) In Our sole discretion, We may remove any File or Content uploaded to the Website and close any users account who violate our rules. This includes, but is not limited to, File and Content which We or other Website users find offensive or that has the potential to interfere with or that infringes upon the rights of others.
(b) We may access and disclose any information about You, Your accounts, or any content You provide to the Website if We believe that such action is reasonably necessary to enforce this Agreement, to comply with the law and legal process, to operate Our systems properly, and to protect Us, or other users.
(c) We reserve the right, to control and conduct which we deem to be harmful or threatening to other users or potential users, or in violation of Our or any third party's rights.
9. Contribution of Feedback to Cutcaster
By submitting ideas, feedback, suggestions, documents, and/or proposals ("Contributions") to Cutcaster through email, phone or its suggestion or feedback webpages, you acknowledge and agree that: (a) your Contributions do not contain confidential or proprietary information; (b) Cutcaster is not under any obligation of confidentiality, express or implied, with respect to the Contributions; (c) Cutcaster shall be entitled to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide; (d) Cutcaster may have something similar to the Contributions already under consideration or in development; (e) your Contributions automatically become the property of Cutcaster without any obligation of Cutcaster to you; and (f) you are not entitled to any compensation or reimbursement of any kind from Cutcaster under any circumstances.
(a) We expressly disclaim all warranties and conditions of any kind, either express or implied, including without limitation any implied warranties or conditions of merchantability, fitness for a particular purpose, non-infringement of third-party rights, and those arising from a course of dealing or usage of trade.
(b) We do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection. From time to time the porting of particular File or Content may not be feasible and We may remove any such content from the Website without any liability to You. You are responsible for assessing Your hardware and transmission needs.
(c) We assume no responsibility for anything arising from the possession or use of the content or files obtained from us or used via the Website.
(d) We make no warranty that Our Service or use of the Website will be uninterrupted, timely, secure, or error free. We make no warranty as to the results that may be obtained from the use of the Website or Content purchased on the Website.
(e) We make no warranty with respect to software, if any, used in connection with the Services on or provided by the Website.
11. Limitation of Liability
You acknowledge that We shall not assume or have any liability with respect to the use of content or for any indirect, incidental, special or consequential damages (including, without limitation, damages or loss of business, lost profits, business interruption, loss of business information, or any other pecuniary loss, even if We have been informed of the possibility of such damages, or resulting from the use of or the inability to use the Services or the Website, or from unauthorized access to the Website, data or account. You specifically agree that We are not responsible or liable to You or anyone else for any threatening, defamatory, offensive or illegal conduct or speech of any other party or any infringement or violation of another's rights, including intellectual property rights, rights of publicity, or rights of privacy.
Your account with us may be terminated at any time with or without cause by either Us or You. Your only right with respect to any dissatisfaction with any (i) of Our terms or practices, (ii) content available on the Website, or (iii) amount or type of royalties or billing methods, or change therein, is to terminate Your account with us by notifying Our customer service department of Your request to terminate by e-mail. Your notice of termination will be effective upon receipt. With regard to Files or Content posted by You and approved by us that has been posted for less than 90 days when You request termination of Your account, Your account will not terminate as to that specific Content until the 91st day after the Content was posted by Us (see Section 2 above). We will remove all content you have uploaded to Cutcaster within 30 days of your written notice to us via email.
13. Impermissible Conduct
(a) You may not upload Content which is unlawful and You agree to use the Services and the Website only for lawful purposes. You may not post to or use the Website to transmit sexually explicit Files or other Content which is deemed by us to be generally offensive to the public or harmful to minors. Any conduct that We determine, in Our sole discretion, restricts or inhibits any other user, person or entity from using or enjoying the Website will not be permitted and Your account is subject to immediate termination without notice.
(b) You may not under any circumstances use the Website, or information contained on it to contact registered Cutcaster content creators via e-mail addresses acquired through the website, or via a forum/community for the purpose of soliciting the uploading of files or sale of files through another Stock Content and/or Media website. Any conduct that We determine, in Our sole discretion, constitutes the solicitation of our contributors via our website interface, forums or private messaging system, will not be permitted and Your account is subject to immediate termination without notice.
A material part of this contract is the agreement to arbitrate. Any and all disputes arising out of, under or in
connection with this Agreement, with the exception of copyright claims, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in New York City, New York pursuant to the rules of the Arbitration Act (New York) in effect at the time arbitration is demanded. Judgment upon any award rendered may be entered in the highest court of the forum having jurisdiction. This Agreement, its validity and effect, shall be interpreted under, and governed by, the laws of the State of New York, and You agree that the arbitrators shall award all costs of arbitration, including legal fees, plus legal rate-of-interest to the successful party. Copyright infringement claims shall be brought in the Courts of the State of New York. You consent to service of any required notice or process upon You by registered mail or overnight courier with proof of delivery.
15. Legal Fees and Jurisdiction
If We are obligated to go to court, rather than arbitration, to enforce any of Our rights, or to collect any fees, You agree to reimburse us for Our legal fees, costs and disbursements if We prevail. You agree that the Courts of the State of California are the agreed and appropriate forums for any such suit, and You consent to service of process by registered mail or overnight courier with proof of delivery.
If any term or provision of this Agreement is found to be unenforceable for any reason, this Agreement shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.
17. Entire Agreement
YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF SERVICE.
This Agreement along with any Contributor Contract and/or Content License Agreement comprises the entire agreement between You and Us, and supersedes any prior agreements. We reserve the right, at Our discretion, to revise these Terms and Conditions at any time, and such revision shall be effective immediately upon the posting of the revised version at the Website. You agree to review these Terms and Conditions periodically to become aware of such revisions. If any such revision is unacceptable to You, You may cease using the Services and terminate Your account. Your continued use of the Services following posting of a revised Terms and Conditions on the Website shall be deemed to be acceptance of the revisions.