BREAK.COM VAULT TERMS OF SERVICE
Welcome to the Break.com Vault (the “Vault”), which provides video content creators with a platform through which to share and license their content for potential usage across all media, including television shows, films, news broadcasts, mobile media, and commercials which may have a need for “user generated content” style video!. The Vault believes that today’s “plugged in” independent content creators possess the creativity, knowhow, and ability to generate appropriate payments for the licensing of their first-rate video content! As such, the Vault is intended to provide a simple to use, turnkey platform for creators to deliver, and licensees to select, videos that they want to use for their programming. Subject to these the Vault Terms of Service, videos uploaded to the Vault are made available for licensing, making the Vault a hassle-free resource for entertainment industry professionals looking for content.
Agreement to Terms of Service
The policies below are applicable to the web site located at thevault.break.com, its parent company Defy Media, LLC, and each of their respective affiliates, parents, subsidiaries, licensees, and assigns (collectively hereinafter referred to, alternatively, as “the Vault,” the “Site,” “we,” “us,” “our” or similar identifying pronouns). Please read these Terms of Service carefully to ensure your legal, safe, and enjoyable use of the Site. They contain the legal terms and conditions that govern your use of the services provided to you by the Site and are a binding agreement with you, just as if you had signed this document. In using the Site, you affirm that you are at least 18 years of age, or an emancipated minor, or possess documented legal parental or guardian consent, and you are fully able and competent to enter into, abide by and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service.
License to Use Site
Ownership of Site; Site Content
All text, software, user interfaces, visual interfaces, graphics, photographs, artwork, trademarks, logos, sounds, music, video, computer codes and other audio-visual material (collectively, “Content”) contained on the Site, including but not limited to the design, structure, coordination, selection, expression, and arrangement of such Content, is controlled, owned, or licensed by or to the Vault, as further set forth in these Terms of Service, and is protected by copyright, trademark and various other intellectual property and unfair competition laws. Except as expressly provided in these Terms of Service, no part of the Site and no Content may be used in any way without the Vault’s express prior written consent, including without limitation the copying, publicly display, reproduction, republishing, posting, uploading, transmitting, or distributing in any method or manner to any other device, computer, web site or other platform or medium. The unauthorized copying and distribution (including without limitation downloading, uploading, file serving, file “swapping” or other similar activities) of any such Content or materials constitutes copyright infringement under the U.S. Copyright Act and international copyright laws, and the Vault and its third party licensors and suppliers will enforce such rights to the full extent of the law. The Vault, Defy Media, LLC, Break.com and other Vault graphics, logos and service names are registered or otherwise protected trademarks or service marks (“Trademarks”). These Trademarks many not be used in connection with any product or service that is not owned or operated by the Vault or in any manner that is likely to cause confusion among customers or in any other manner that disparages or discredits the Vault. All other trademarks, branding and logos not owned by the Vault that appear on this Site are the property of their respective owners who may or may not be affiliated with, sponsored by or connected to the Vault. The Vault reserves the right to do any of the following, at any time, without notice: (1) modify, terminate, or suspend access/operation to the Site, or any portion of the Site, for any reason; (2) modify or change the Site, or any portion of the Site, and any applicable policies or terms; and (3) interrupt the operation of the Site, or any portion of the Site, as necessary to perform routine or non-routine maintenance, error correction, technical updates or other changes.
The Vault may, from time to time, provide you with the opportunity to upload and/or download certain Content.
- You agree that, absent our written agreement to the contrary, all the information and Content downloaded, viewed, screened or accessed will be used only for informational and/or evaluation purposes.
- You acknowledge and agree that you may be charged customary and reasonable fees for downloading Content, separate to and regardless of whether you actually license the Content.
- You agree there shall be no commercial exploitation or use, directly or indirectly, or any other unauthorized use of any Content available on this Site without a separate fully executed license agreement by and between the Vault and you authorizing same.
In case of circumvention, you agree and acknowledge that a breach of this Terms of Service agreement by you would cause the Vault irrevocable injury and damage that cannot be adequately compensated by damages in an action at law. You therefore expressly agree that, without limiting the Vault’s rights and remedies at law, including without limitation the right to seek damages for any such breach by you, the Vault shall further be entitled to injunctive and other equitable relief to prevent and/or cure any breach or threatened breach of this agreement, without proof of actual damages. In addition, you agree to indemnify and hold the Vault harmless from and against any and all claims, damages, liabilities, costs and expenses, including reasonable outside attorney’s fees, arising out of or resulting from your unauthorized use of any Content on the Site (including, but not limited to, your editing thereof).
Restriction On Use of Site
Vault Content; Acceptable Guidelines
The Vault strongly encourages you and other users to apply for a Vault Account (an “Account”). Account holders will be allowed and encouraged to post, upload and submit original video files to the Site (“Vault Content”). By posting, uploading or submitting Vault Content to the Site, you are expressly agreeing to these Terms of Service, the Vault licensing terms (including the grant of Rights) and the user representations and warranties in connection with the Vault Content as further set forth below. In particular, you are representing and warranting that you own or control all rights to the Vault Content, including the requisite clearances, releases and authorizations for the use of any content, likeness, music tracks or other materials contained, included or depicted in the Vault Content.
Vault Content must be in compliance with the following Vault Content Guidelines (the “Guidelines”), which are a set of content restrictions and suitability requirements intended to allow all Vault visitors users to safely enjoy the Site: no Vault user, including without limitation its members, shall post, upload or submit Vault Content which includes ANY of the following: (i) pornographic, lewd or sexually explicit content; (ii) violence or physical abuse of any kind; (iii) illegal activities of any kind; (iv) defamation, slander or libel; (v) depictions of discrimination or discriminatory content; (vi) fraudulent or misleading content (including tags, titles and descriptions); (vii) invasion of privacy, including content which reveals the personal information of a third party; (viii) content which is clearly inappropriate for children; (ix) content involving harassment, intimidation, threats and other inappropriate predatory behavior; (x) content which is intended to disgust or shock; (xi) and intellectual property or other proprietary content or rights belonging to third parties, including without limitation the use of any third party likeness, wherein you have failed to obtain the requisite written and documented releases, clearances and authorizations necessary for use of such Vault Content.
We reserve the right to remove any Vault Content for any reason and at our sole good faith discretion, particularly if the Vault Content contain(s) any content in violation of these Guidelines or which we otherwise deem to be inappropriate or unacceptable. We further reserve the right to terminate your Vault membership and/or your access to the Site at any time based on the seriousness or repeated nature of such violative, inappropriate or unacceptable Vault Content.
Ownership; License and Granted Rights to Vault Content
Upon uploading, submitting, emailing, posting, publishing or otherwise transmitting any Vault Content to the Site and unless otherwise documented in a written agreement between the Vault and you, you retain ownership of any intellectual property rights you hold in and to the Vault Content; however, you grant the Vault an nonexclusive, worldwide, royalty-free, assignable and sublicensable, perpetual and irrevocable right and license to use, reproduce, modify, adapt, rearrange, promote, market, prepare derivative works based on, perform, display, publish, distribute, transmit, stream, broadcast and otherwise exploit such Vault Content in any form, method, medium, platform or technology now known or later developed, including without limitation on the Site and third party websites, podcast, video game consoles and services, mobile apps, video-on-demand and television (the “Rights”). The Vault shall further be granted by you the right to assign freely the Rights in accordance with these Terms of Service and the License Agreement (as set forth below).
You represent and warrant that you own or have the necessary licenses, rights, consents, and permissions to grant the foregoing Rights to the Vault and you further grant to us, on an exclusive, worldwide, royalty-free, assignable and sublicensable, perpetual and irrevocable basis, all patent, trademark, trade secret, copyright or other proprietary rights in and to such Vault Content. You acknowledge and agree that we shall own all rights, title and interest in and to all derivative works and compilations of Vault Content that are created by us, including without limitation all worldwide intellectual property rights therein. You agree to execute and deliver such documents and provide all assistance reasonably requested by us, at our expense, to give us the full benefit of these Terms of Service, including without limitation the License Agreement. You furthermore agree to irrevocably appoint the Vault as its attorney-in-fact to take any such action as may from time to time be necessary to effect, transfer, or assign the rights granted to the Vault herein.
Vault Content – Representations and Warranties
You acknowledge that you are solely responsible for all Vault Content you upload, post or otherwise transmit using this Site. We do not endorse any Vault Content or any information, opinion, recommendation, or advice expressed therein. You represent and warrant that any Vault Content posted, uploaded or submitted by you are one hundred percent original to you and/or that you own and/or control all of the materials, content, and intellectual property contained therein, including without limitation the necessary licenses, releases, rights, consents, and permissions to grant the Vault the Rights and all other rights and licenses set forth in this Terms of Service agreement. Without limiting the foregoing, you represent and warrant that you have obtained the written consent, release and/or permission of each person who is identifiable in each of your Vault Content to use the name and likeness of each such person in your Vault Content in the manner contemplated by these terms. You further represent and warrant that your Vault Content (i) do not and will not, directly or indirectly, violate, infringe or breach any duty toward or rights of any person or entity, including without limitation any copyright, trademark, service mark, trade secret, other intellectual property, publicity or privacy right and will not require any costs or payments for their use by the Vault or its licensees and assignees; (ii) are not fraudulent, misleading, tortuous, defamatory, slanderous, libelous, abusive, violent, threatening or obscene; (iii) do not harass others, promote bigotry, racism, hatred or harm against any individual or group, promote discrimination based on race, sex, religion, nationality, sexual orientation or age; (iv) are not illegal and do not promote illegal or harmful activities or substances; (v) do not contain any computer programming routines or viruses (including without limitation: time bombs, Trojan Horses, worms, Easter Eggs, drop dead devices or cancelbots) that are intended to damage, interfere with, intercept or expropriate any system data or personal information, permit unauthorized access to the Site or disable, damage or erase any portion of the Content stored therein; and/or (vi) do not otherwise violate the Guidelines.
License Fee; License Agreement
In consideration of all of the Rights granted and all other rights provided by you in connection with Vault Content as set forth herein, the Vault may offer the opportunity for, but not the guarantee of, compensation to you in connection with the distribution and exploitation of the Rights (the “Vault Content Fees”). In any event, no Vault Content Fees shall be payable for the syndication usage and/or promotional usage of Vault Content by the Vault or its licensees, affiliates or assignees. The Vault will have no obligation to pay any Vault Content Fees which are determined or reasonably suspected by the Vault in its sole discretion to have resulted from: (i) click fraud (as the term is customarily understood in the business), including without limitation through any clicks originating from IP addresses or computers under your control, solicited by payment of money, bots, false representation or request for end users to click on ads, or (ii) fraudulent, misleading or false activities. The Vault shall not be responsible for any payments to you for revenue earned in connection with the Rights but not received by the Vault as a result of acts of force majeure, including without limitation the interruption, shutdown or termination of a channel or other platform (where the Rights have been exhibited) by legal and/or administrative order or decree or as a direct result of actions taken by a third party beyond the Vault’s control (including without limitation YouTube) or any other means outside of the Vault’s direct control. You further acknowledge all Vault Content Fees, if any, shall be paid exclusive of any taxes which may be imposed by governmental entities of whatever kind and you shall be responsible for reporting any taxes relating to payments you receive pursuant to these Terms of Service or any License Agreement with the Vault to the appropriate tax authority. You shall indemnify, defend and hold the Vault, and the directors, officers, employees and agents of the foregoing, harmless from and against any and all taxes which may have to be paid and any and all liabilities which may be obtained against or incurred by any of the foregoing by reason of the failure to deduct and withhold any amount required or permitted to be deducted and withheld from Vault Content Fees. By providing a User Submission, you further agree to enter into and execute a more formal license agreement (“License Agreement”) with the Vault in connection with the Rights and any User Submission, and such License Agreement shall be communicated through such methodology as the Vault may select, may contain terms that replace, clarify, or supersede terms contained herein. Unless and until such more formal agreement has been negotiated and executed, these Terms of Service shall constitute a binding agreement between the parties.
Copyright Infringement; Digital Millennium Copyright Act
The Vault owns, protects and enforces copyrights in its own creative material and respects the copyrighted properties of others. Materials may be made available on or via the Site by third parties not within the control of the Vault. It is our policy not to permit materials known by us to be infringing to remain on this site. If you is a copyright owner or an agent thereof and believe that any Vault Content, or other content, infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act of 1998, as amended (the “DMCA”) by providing us with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) the physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the Vault Content, or other content, that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address; (v) a statement that you have a good faith belief that use of the Vault Content, or other content, in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Pursuant to the DMCA 17 U.S.C. 512 (c), the Vault has designated the Chief Legal Officer and General Counsel of the Vault, LLC, the parent company of the Vault, as its agent (“Agent“) for notification of claims of copyright infringement with respect to information residing, at the direction of a user, on the Site Web site. The Agent contact information is: Defy Media, LLC c/o Chief Legal Officer/ General Counsel, 498 7th Avenue, 19th Floor, New York, NY 10018, email: firstname.lastname@example.org.
For purposes of clarification, solely DMCA notices should go to the Agent; all other feedback, comments, requests for technical support, and other communications should be directed as set forth at the beginning of these Terms of Service. you expressly acknowledge that if you fails to comply with all of the requirements of these Terms of Service, your DMCA notice may not be valid.
If you believe that your Vault Content, or other content, that has been removed (or to which access was disabled) is not infringing, or that you has authorization from the actual copyright owner, the copyright owner’s agent, or pursuant to law, to submit, post and make use of such Vault Content, or other content, you may send a counter-notice containing the following information to the Agent: (i) your physical or electronic signature; (ii) identification of the Vault Content, or other content, that has been removed or to which access has been disabled and the location at which the Vault Content, or other content appeared on the Site prior to the point at which such Vault Content, or other content, was removed or disabled; (iii) a statement that you has a good faith belief that the Vault Content, or other content, was removed or disabled as a result of mistake or a misidentification of the Vault Content, or other content; and (iv) your name, address, telephone number, and, if available, an electronic mail address, a statement that you consents to the jurisdiction of the federal court in New York, New York, and a statement that you will accept service of process from the party that provided notification of the alleged infringement.
If a counter-notice is received by the Agent, the Site may send a copy of such counter-notice to the original complaining party informing such party that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, member, or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the Site’s sole discretion.
The Site suggests that you consult your legal advisor before filing a notice or counter-notice. Please also be aware that there can be penalties for false claims under the DMCA.
Disclaimer of Warranties
WE SOMETIMES PROVIDE LINKS TO INTERNET SITES MAINTAINED BY THIRD PARTIES (“THIRD PARTY SITES”) AND MAY FROM TIME TO TIME PROVIDE THIRD PARTY MATERIALS ON THIS SITE. NEITHER THIS SITE, DEFY MEDIA, LLC, NOR ITS AFFILIATES OR SUPPLIERS NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, OPERATE, CONTROL OR ENDORSE IN ANY RESPECT ANY INFORMATION, PRODUCTS OR SERVICES ON THESE THIRD PARTY SITES. THIS SITE, THE MATERIALS AND PRODUCTS AVAILABLE IN OR ACCESSIBLE THROUGH THIS SITE, AND THE THIRD PARTY SITES ARE PROVIDED “AS IS” AND, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES IMPLIED FROM A COURSE OF PERFORMANCE OR COURSE OF DEALING. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SUCH MATERIALS AND PRODUCTS, OR IN THE SERVICE, WILL BE UNINTERRUPTED OR ERROR-FREE, WILL BE AVAILABLE FOR USE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE, INCLUDING STORAGE SERVICES AND THEIR CONTENTS, OR THE SERVER THAT MAKES THEM AVAILABLE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE MATERIALS IN THE SERVICE OR IN THIRD PARTY SITES IN TERMS OF THEIR CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY, COMPLETENESS OR OTHERWISE.
Limitation of Liability
Your communications with, business dealings with, or participation in promotions of merchants found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such merchant. You understand and agree that any content downloaded or otherwise obtained through the use of this Site is done at your own risk and that you will be solely responsible for any damage done to your computer system or loss of data that results from the download of such content. We will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings, content downloads or as the result of the presence of such merchants on the Site. You assume all risk of errors and/or omissions on the Site and any Third Party Sites, including the transmission or translation of information. You assume full responsibility for implementing sufficient procedures and checks to satisfy your requirements for the accuracy and suitability of the Site and any Third Party Sites, including the information contained therein, and for maintaining any means that you may require for the reconstruction of lost data or subsequent manipulations or analyses of the information provided hereunder. You acknowledge and agree that your use of the Site and any Third Party Sites, and any information sent or received in connection therewith, may not be secure and may be intercepted by unauthorized parties. YOU ASSUME RESPONSIBILITY FOR THE ENTIRE COST OF ALL NECESSARY MAINTENANCE, REPAIR OR CORRECTION TO YOUR COMPUTER SYSTEM OR OTHER PROPERTY.
In no event shall the Site, the Vault, Defy Media, LLC, its parent, affiliates or subsidiary companies or their respective directors, officers, employees, agents, affiliates or suppliers be liable for any direct, indirect, punitive, incidental, special, consequential or other damages arising out of or in any way connected with the use of the Site or with the delay or inability to use the Site, or for any information, software, products and services advertised in or obtained through the Site, our removal or deletion of any materials or records submitted or posted on the Site, or otherwise arising out of the use of the Site, whether based on contract, tort, strict liability or otherwise, even if the Vault, Defy Media, LLC or any of its subsidiary companies, affiliates or suppliers has been advised of the possibility of damages. This waiver applies, without limitation, to any damages or injury arising from any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, file corruption, communication-line failure, network or system outage, theft, destruction, unauthorized access to, alteration of, or use of any record. You specifically acknowledge and agree that the Vault, Defy Media, LLC, its parent or subsidiary companies, affiliates or suppliers shall not be liable for any defamatory, offensive or illegal conduct of any user of the service. While some states do not allow limitations on how long an implied warranty lasts or the exclusion or limitation of incidental or consequential damages, you are consenting by these Terms of Service to personal jurisdiction in California.
You agree to defend, indemnify and hold harmless the Site, the Vault and Defy Media, LLC, its parent, affiliates or subsidiary companies and their respective directors, officers, employees and agents from and against any and all claims, actions, suits or proceedings, as well as any and all losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) arising out of or accruing from (i) your access to or use of this Site; (ii) your violation of these Terms of Service (including without limitation the Rights or any License Agreement); (iii) your violation of any third party right, including without limitation any intellectual property right, property or privacy right; or (iv) any claim that one of your Vault Content caused damage to you or a third party. You agree that we may at any time and without notice, suspend or terminate your access to this Site if you fail to comply with these Terms of Service or applicable law.
Child Protection Notification
This Site contains some content that might be deemed unsuitable to minors. This Site is intended for a mature audience and parents who find any material on this site unsuitable for their children are encouraged to utilize parental control services. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors.
Violation of These Terms of Service
You also agree that the Vault may, in its sole discretion and without prior notice, suspend or terminate your access to the Site and/or block your future access to the Site if we determine that you have violated these Terms of Service or other agreements or guidelines which may be associated with your use of the Site. You also agree that any violation by you of these Terms of Service will constitute an unlawful and unfair business practice and will cause irreparable harm to the Vault for which monetary damages would be inadequate, and you consent to the Vault obtaining any injunctive or equitable relief that the Vault or its counsel deems necessary in such circumstances. These remedies are in addition to any other remedies the Vault may have at law or in equity. If the Vault does take any legal action against you as a result of your violation of these Terms of Service, the Vault will be entitled to recover from you, and you agree to pay, all attorneys’ fees and costs of such action, in addition to any other relief granted. You agree that the Vault will not be liable to you or to any third party for termination of your access to the Site as a result of any violation of these Terms of Service or as a result of technical problems or modifications to the Site or as otherwise required by law.
These Terms of Service and any rights and licenses granted by you hereunder (including without limitation the Rights) may not be transferred or assigned by you, but may be assigned by the Vault without restriction.
Governing Law; Dispute Resolution
You agree that: (i) the Site and all services provided shall be deemed solely based in California; and (ii) the Site and all services provided shall be deemed a passive website that does not give rise to personal jurisdiction over the Vault, Defy Media, LLC, its parent, affiliates or subsidiary companies and their respective directors, officers, employees and agents, in jurisdictions other than New York. You agree these Terms of Service shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. Although you acknowledge that we will have the ability to enforce our rights in any court of competent jurisdiction, you hereby consent to the personal jurisdiction and exclusive venue in New York, NY, U.S.A., regarding any and all disputes relating to these Terms of Service or your access to or use of the Site, including without limitation Vault Content. You acknowledge and agree that the warranty disclaimers and liability and remedy limitations in this agreement are material terms of this agreement and that they have been taken into account in the decision by us to provide the Site to you hereunder. Except in instances where the Vault deems it necessary to seek injunctive or other equitable relief (and as otherwise set forth in these Terms of Service), the parties hereby agree to submit any disputes or controversies between them to binding arbitration in New York, NY in accordance with the rules of the American Arbitration Association. All rights to recover consequential, incidental and/or punitive damages are waived by you. In the event of any dispute, you shall not be entitled to and hereby waive all right to any equitable relief whatsoever, including the right to rescind this Terms of Service agreement , or to enjoin, restrain or interfere in any manner with the Site. The prevailing party shall be entitled to its reasonable outside attorneys’ fees and costs, including its share of the arbitration costs, from the losing party. All decisions of the arbitrator shall be final, binding, and conclusive on all parties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof.
YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CLAIM OR CAUSE OF ACTION IS PERMANENTLY BARRED.