Last Modified on April 4, 2013
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
YOUR USE OF THE SITE, SOFTWARE AND/OR THE SERVICE, DOWNLOADING THE SOFTWARE, OR BY CLICKING "I ACCEPT" IF PRESENTED WITH THIS TOU IN A CLICK-THROUGH FORMAT, SIGNIFIES THAT YOU AGREE TO THIS TOU AND CONSTITUTES YOUR BINDING ACCEPTANCE OF THIS TOU, INCLUDING ANY MODIFICATIONS THAT PB MAKES FROM TIME TO TIME.
3. ToU Updates. PB will revise this ToU as the Site and/or Service evolves. The next time you use the Service after such an update, you may be prompted to agree to or decline the revised ToU. You must agree to all revisions if you choose to continue using the Site and/or Service. By using the Site and/or Service, you agree to the then-current version of this ToU as posted on the Site at https://productionbeast.com/terms. If at any point you do not agree to any portion of the then-current version of this ToU, you must immediately stop using the Site and/or Service.
4. Software Updates. In an effort to improve the Service, PB may require that you download and install updates to the Software. You acknowledge and agree that PB may update the Software with or without notifying you. All modifications or enhancements to the Software remain the sole property of PB.
5. Termination of Service. This ToU will be effective as of the date you accept this ToU, thereby expressly agreeing to the terms and conditions set forth herein, and will remain effective until termination by either party as set forth below. As used herein, the term "Term" means the period of time from the date you accept this ToU until the date this ToU terminates or expires. You may terminate this ToU at any time provided you cease all use of the Software and Service AND destroy or remove from all mobile devices in your possession all copies of the Software. The Service is a closely-controlled software system owned and maintained by PB, and PB reserves the right to deny service to any user at PB's sole and absolute discretion. The Service is offered with the understanding that PB may terminate this ToU and/or any Account registered to you and/or your access to the Service at any time, for any reason or no reason, including without limitation for any violation of the ToU. For purposes of clarification, to the extent that you have registered your Account through a SNS account, termination of an Account does not result in termination of the SNS account that may be tied to your Account. PB may stop offering and/or supporting the Service at any time. Upon termination of this ToU for any reason (i) all licenses and rights to use the Software and Service shall terminate and you must remove the Software from your mobile devices in your possession, and (ii) Sections 5, 6.9 and 7 through 21 shall survive such termination.
6. License, Access, Fees and Security.
6.1. Limited License. The Service is available for use only by authorized end users in accordance with the terms and conditions set forth in these ToU. PB grants you a non-exclusive, non-transferable, revocable, limited license, subject to all limitations provided herein to access and use the Service using a PB-supported web browser or mobile device for your individual, non-commercial purposes. Should PB release the Software, you may be required to agree to additional end user license agreements prior to accessing the Software. Except as may be expressly permitted by PB, you may not sell, copy, exchange, transfer, publish, assign or otherwise distribute anything you copy or derive from the Service.
6.2. Eligibility. You represent that you are an adult and have the legal capacity to enter a contract in the jurisdiction where you reside.
6.3. Account. You may only access the Service through one (1) Account at any given time. If your contact information changes, you agree that you will promptly update the Account information to reflect those changes. You understand that if you access certain portions of the Service through your SNS-linked Account, your name and profile picture may be publicly available and that search engines may index your name and profile photo, and that PB may use that profile picture in its promotional or marketing material. You agree that you shall not create an Account or access the Service through an Account if you (i) are under the age of 18, (ii) are a convicted sex offender, (iii) if you have previously been removed by PB or banned from using the Service, (iv) are located in a country embargoed by the United States or (v) are on the U.S. Treasury Department's list of Specially Designated Nationals.
6.4. Fees. Some aspects of the Service require you to pay a fee, the details of which will be made available at a future time. To the extent that you have registered to use aspects of the Service which require a fee, you agree to pay all fees and applicable taxes incurred by you or anyone using an Account you registered. PB may revise the pricing for the Service at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or Service rendered by, PB, your Account may be closed without warning or notice at the sole discretion of PB.
YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED SERVICES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
PB may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in these ToU or elsewhere on the Site.
6.5. Access. You must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile device that is suitable to connect with and use the Service, in cases where the Service offers a mobile component.
6.6. Account Security. Maintaining account security is very important. You are entirely responsible for maintaining the confidentiality of your Account password. You agree to notify PB immediately if you believe that your Account password has been compromised.
6.7. Account Sharing or Transfers. You may not share or transfer your right to access the Service through your Account. You may not disclose your username and password to anyone.
6.8. Cancellation by You. You have the right to cancel the registration of your Account for the Service at any time. You may cancel any Account registered to you by following the instructions on the Site.
6.9. Effect of Account Termination or Cancellation. If you voluntarily terminate the registration of your Account or allow that Account to lapse, you may reactivate that Account as a registered account for the Service at any time through the account interface on the Site. Accounts restricted for use by PB for any type of abuse, including without limitation a violation of these ToU, may not be reactivated for any reason.
7. Restrictions and Conditions of Use.
7.1. Use of Site and Service. PB permits you to view and use a single copy of the Site and the Software (on a per platform basis) for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, or services obtained from the Site, Software and/or Service. You accept full responsibility for any unauthorized use of the Service in connection with your Account.
7.2. No Violation of Laws. You agree that you will not, in connection with your use of the Site, Apps, Software or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Apps, Site, Software and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
7.3. Misuse of Site and/or Service. You may not connect to or use the Site, Software and/or Service in any way not expressly permitted by this ToU. Without limiting the foregoing, you agree that you will not (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Site, Software and/or Service or otherwise attempt to disrupt the Site, Software and/or Service or any other person's use of the Site, Software and/or Service; or (b) attempt to gain unauthorized access to the Site, Software, Service, Accounts registered to other users, or the computer systems, mobile devices or networks connected to the Site, Software and/or Service. You may not remove any proprietary notices from any copy of the Software. Furthermore, you may not use the Site, Software and/or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Site and/or Service, (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; or (vi) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias).
7.4. No Commercial Uses. You agree that you will not use the Apps, the Site, Software or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Apps, the Site, Software or Service.
7.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service, including without limitation information about your character, other players, virtual items, or other Apps data, using any method not expressly permitted by PB; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Apps, Software or the Service, whether through the use of a network analyzer, packet sniffer or other device; (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Apps, the Site, Software or the Service.
7.6. Interactions with other Users. You are solely responsible for your interactions with other users of the Service and any other parties with whom you interact through the. PB reserves the right, but has no obligation, to become involved in any way with these disputes. If you have a dispute with one or more users, you release PB (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his settlement with the debtor."
8. User Content.
8.1. Content. "Content" means any communications, images, sounds, text, and all the material and information that you upload or transmit through the Site, Apps and/or Service, or that other users upload or transmit, including without limitation photographs and contact information. You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice such Content as well as all modified and derivative works thereof, without compensation to you. None of the Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Content. You agree that you may not upload or otherwise transmit on or through the Site, Apps and/or Service any Content that is subject to any third-party rights.
8.2. Content Screening and Disclosure. We do not, and cannot, pre-screen or monitor all Content. We do not assume any responsibility or liability for Content that is generated by users of the Site and/or Service. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, or remove any Content.
9. Ownership. As between you and PB and/or its licensors, PB and/or its licensors own the Site, Software, Service, the Apps and data generated by the Service (collectively, "Apps Assets"). PB and its licensors reserve the exclusive right to create derivative works based on the Site, Software, the Service, Apps and/or Apps Assets. You agree that you will not create any work of authorship or create any derivative works based on the Site, Software, the Apps or the Service except as expressly permitted by PB. Any reproduction or redistribution of the Site, Software or the Apps, or use of the Service not in accordance with the ToU is expressly prohibited by law, and may result in severe civil and criminal penalties.
10.1. Links from the Site. The Site may contain links to websites operated by other parties, including advertisers. PB provides these links to other websites as a convenience, and use of these sites is at your own risk. The linked sites are not under the control of PB, and PB is not responsible for the content available on the other sites. Such links do not imply PB's endorsement of information or material on any other site and PB disclaims all liability with regard to your access to and use of such linked websites.
10.2. Links to the Site. Unless otherwise set forth in a written agreement between you and PB, you must adhere to PB's linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with PB's and/or its licensors' names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with PB, (iii) when selected by a user, the link must display the Site on full-screen and not within a "frame" on the linking Site, and (iv) PB reserves the right to revoke its consent to the link at any time and in its sole discretion.
11. Notice for Claims of Copyright Infringement.
If you are a copyright owner or agent thereof and believe that content posted on the Site by a PB user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:
Our Copyright Agent can be reached by mail at: ProductionBeast LLC, 604 Arizona Ave., Santa Monica, CA 90401 ATTN: ProductionBeast LLC Copyright Agent. or by email at firstname.lastname@example.org. Please note that attachments cannot be accepted at the email address for security reasons. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
12. Intellectual Property.
12.1. Trademarks. "ProductionBeast" and related logos are the exclusive property of PB . Unauthorized use of any PB trademark, service mark or logo may be a violation of federal and state trademark laws.
12.2. Copyright. The Site, Software, Service and Apps are protected by U.S. and international copyright laws. Except for your use as authorized above, you may not modify, reproduce or distribute the content, design or layout of the Site, Software, Service or Apps, or individual sections of the content, design or layout of the Site without PB's express prior written permission.
The Site and the Service are operated by PB in the United States. Those who choose to access the Site, and/or the Service from locations outside the United States do so on their own initiative and are responsible for compliance with applicable local laws.
The Site and the Service are not directed toward children under 13 years of age nor does PB knowingly collect information from children under 13. If you are under 13, please do not submit any personally identifiable information to PB.
15. DISCLAIMER OF WARRANTIES.
THE SITE AND SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. PB MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE SITE AND/OR SERVICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SITE, THE SERVICE AND/OR THE CONTENT AVAILABLE ON THE SITE AND/OR SERVICE IS AT YOUR SOLE RISK. PB DOES NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE OR THE SERVICE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
16. LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, PB, ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE "RELATED PARTIES") DISCLAIM ALL LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND FURTHER DISCLAIM ALL LOSSES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR SERVICE, EVEN IF PB AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF PB OR ANY OF THE RELATED PARTIES EXCEED THE AMOUNT THAT YOU PAID TO US OR OUR DESIGNEES DURING THE SIX (6) MONTHS PRIOR TO THE TIME YOUR CAUSE OF ACTION AROSE.
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of PB and its affiliates shall be limited to the fullest extent permitted by law.
17. Indemnification. You agree to indemnify, defend and hold PB and the Related Parties harmless from any claim, demand, damages or other losses, including reasonable attorneys' fees, asserted by any third-party resulting from or arising out of any breach by you of this ToU or any other policies that PB may issue for the Site and/or Service from time to time.
18. Dispute Resolution and Governing Law.
18.1. Governing Law; Jurisdiction. This ToU shall be is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as provided in Section 18.2 below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Properties shall be subject to the exclusive jurisdiction of the state and federal courts located in the County of Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts.
18.2. Binding Arbitration.
Arbitration Procedures. You and PB agree that, except as provided in Section 18.2(d) below, all disputes, controversies and claims related to this ToU (each a "Claim"), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 18.2 and the JAMS Rules, the terms in this Section 18.2 will control and prevail.
Except as otherwise set forth in Section 18.2(d), you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (i) you and PB may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator's decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND PB WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. /p>
19.1. TOU Revisions. This ToU may only be revised in a writing signed by PB, or published by PB on the Site.
19.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and PB as a result of this ToU or your use of the Service or the Software.
19.3. Assignment. PB may assign this ToU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the ToU without PB's prior written consent, and any unauthorized assignment by you shall be null and void.
19.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
19.5. Attorneys' Fees. In the event any litigation is brought by either party in connection with this ToU, the prevailing party in such litigation shall be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
19.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this ToU shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
19.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: ProductionBeast LLC, 604 Arizona Ave., Santa Monica, CA 90401.
19.8. Export Administration. You will comply fully with all relevant export laws and regulations of the United States, including, without limitation, the U.S. Export Administration Regulations (collectively "Export Controls"). Without limiting the generality of the foregoing, you will not, and you will require your representatives not to, export, direct or transfer the Software, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
19.9. U.S. Government Rights. If you are, or are entering into this ToU on behalf of, any agency or instrumentality of the United States Government, the Apps is "commercial computer software" and "commercial computer software documentation," and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction, and disclosure of the Software are governed by the terms of this ToU.
19.10. Equitable Remedies. You hereby agree that PB would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
19.11. Entire Agreement. This ToU, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Site and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Site and/or Service.
20. California Residents. If you are unable to resolve a complaint you may have regarding any of the Service, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite North 112, Sacramento, California 95834, or by telephone at (800) 952-5210.
21. Electronic Communications. You acknowledge and agree that by clicking on the "I AGREE" button or using the Site or the Service, you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Service.