TERMS OF SERVICE FOR CREATORS AND VISITORS
Create.It, Inc. (“Create.It,” “we,” “us,” or “our”) welcomes you. We invite you to access and use our online services, which are made available to you through our proprietary technology platform located at http://Create.It (the “Platform”).
Please note that we provide our Services to our Clients subject to our Platform Terms of Service.
1. DESCRIPTION AND USE OF SERVICES
Create.It provides a unique online crowdsourcing platform for Client Campaigns. We provide Visitors and Creators with access to the Platform as described in this Agreement.
Visitors. Visitors, as the term implies, are people who don’t register with us, but want to poke around and see what the Services are all about. No login is required for Visitors. Visitors can: (a) view all publicly-available content; (b) vote on Submissions; and (b) e-mail us.
Creators. Login is required for all Creators, who can do all the things that Visitors can do, and: (a) create and upload Submissions, comments, and other content; (b) update their accounts; and (c) sign up for alerts and other notifications. You must be at least eighteen (18) years of age to be a Creator.
Create.It is under no obligation to accept any individual as a Creator, and may accept or reject any registration in its sole and complete discretion. Create.It may deactivate any account at any time, including, without limitation, if it determines that a Creator has violated this Agreement. In addition, we reserve the right to notify Facebook of any activity of a Creator that violates this Agreement.
2. CAMPAIGN PROCESS.
2.1 Signing In. A Creator may sign into the Platform using Facebook Connect or Twitter Connect or by creating an account with Create.It. To create an account, Creator will be prompted for an e-mail address (“Sign-In”), a password (“Password”), and perhaps certain additional information that will assist in authenticating Creator’s identity when logging-in in the future (“Unique Identifiers”). When creating an account, Creator must provide true, accurate, current, and complete information. Creator is solely responsible for the confidentiality and use of its Sign-In, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. Creator will promptly inform Create.It of any need to deactivate a Password or Sign-In, or change any Unique Identifier. Create.It reserves the right to delete or change Creator’s Password, Sign-In, or Unique Identifier at any time and for any reason. Create.It will not be liable for any loss or damage caused by any unauthorized use of Creator’s account.
2.2 RFPs. Clients submit RFPs, which remain open and available for Creators to submit Submissions for the amount of time specified in the RFP (the “Submission Period”), and Platform users may vote on the Submissions for the amount of time specified in the RFP (the “Voting Period”).
2.3 Uploading of Submissions. Creators interested in an RFP may upload Submissions via the Platform during the Submission Period.
2.4 Voting and Selection of Winning Submission. Platform users may, through the functionality of the Platform, vote on the Submissions during the Voting Period. At the end of the Voting Period, Client shall select the winning Submission or Submissions in accordance with the Campaign Rules and the specific selection criteria set forth therein.
2.5 Awarding of Prizes. After the Voting Period, Client shall notify the winning Creator or Creators and make all necessary arrangements regarding the fulfillment of the Prizes, including distributing the Prizes to the winners.
3. CAMPAIGN GUIDELINES.
The specific guidelines for Submissions for each Campaign are set forth in our Official Rules and the applicable Campaign Rules.
4. USAGE GUIDELINES.
Create.It’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Platform, you hereby agree to comply with these community rules, which are in addition to the Campaign guidelines set forth above, and that:
• You will not use the Platform for any unlawful purpose;
• You will not take any action that may undermine the feedback, rating, or voting systems;
• Other than creating and uploading Submissions in accordance with this Agreement, you will not use the Platform to engage in any other commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;
• You will not access or use the Platform to collect any market research for a competing business;
• You will not upload, post, e-mail, transmit, or otherwise make available any content that:
o infringes any copyright, trademark, right of publicity, or other proprietary rights or confidential information of any person or entity; or
o is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
o discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;
• You will not “stalk” or otherwise harass another;
• You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
• You will not interfere with or attempt to interrupt the proper operation of the Platform through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Platform through hacking, password or data mining, or any other means;
• You will not cover, obscure, or in any way interfere with any advertisements and/or features on the Platform;
• You will not use any robot, spider, scraper, or other automated means to access the Platform for any purpose without our express written permission; provided, however, we grant the operators of public search engines permission to use spiders to copy materials from the Platform for the sole purpose of and solely to the extent necessary for creating publicly-available searchable indices of the materials, but not caches or archives of such materials; and
• You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure.
We may report fraudulent conduct to law enforcement, and we will cooperate with law enforcement to ensure that violators are prosecuted to the fullest extent of the law. We reserve the right, in our sole and absolute discretion: (a) to deny you access to the Platform, without notice, and to remove any content that does not adhere to this Agreement; and (b) to immediately stop any Campaign in case of technical problems or violations of this Agreement.
5. INTELLECTUAL PROPERTY
The Platform contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Create.It (collectively referred to as the “Content”). The Content may be owned by us or by third parties. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from us. You must retain all copyright and other proprietary notices contained in the original Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
If you violate any part of this Agreement, your permission to access and/or use the Content and the Platform automatically terminates and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of Create.It (“Create.It Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of Create.It. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the Create.It Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Create.It Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
6. SUBMISSIONS, USER CONTENT
6.1 Submissions. Ownership of and licenses to Submissions shall be governed by our Official Rules.
6.2 Other User Content. The Platform provides Creators and Visitors the ability to post and upload user content other than Submissions (e.g., votes, feedback, comments, and questions) (collectively, the “Other User Content” and with the Submissions, the “User Content”). You expressly acknowledge and agree that once you permit your User Content to be viewed by others, it will be accessible and viewable by them. You retain all copyrights and other intellectual property rights in and to your own Other User Content. You do, however, hereby grant us a non-exclusive, perpetual, royalty-free license to modify, compile, combine with other content and data, copy, record, synchronize, format, and index your Other User Content and display, perform, and make it available to others through the Platform.
7. COMMUNICATIONS TO US
With respect to all communications you send to us specifically concerning Create.It, the Services, and/or the Platform, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production and marketing of products and services that incorporate such information.
8. NO WARRANTIES/LIMITATION OF LIABILITY
THE PLATFORM AND ALL CONTENT, TRADEMARKS, SERVICES, USER CONTENT, AND CAMPAIGNS MADE AVAILABLE THROUGH THE PLATFORM ARE PROVIDED BY CREATE.IT ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND WE HEREBY DISCLAIM ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF ANY KIND WITH RESPECT TO THE SAME, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PLATFORM. TO THE EXTENT THAT CREATE.IT MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION) RESULTING FROM THE USE OR INABILITY TO USE THE PLATFORM OR THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
WITHOUT LIMITING THE FOREGOING, YOU HEREBY WAIVE ALL CLAIMS TO DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, IN EXCESS OF $100, AND THE ENTIRE LIABILITY OF THE CREATE.IT PARTIES (AS DEFINED IN SECTION 10) TO YOU FOR SUCH DAMAGES WILL NOT EXCEED $100.
THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM. THE PLATFORM MAY CONTAIN INFORMATION ON CAMPAIGNS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PARTICULAR CAMPAIGN ON THE PLATFORM DOES NOT IMPLY THAT SUCH CAMPAIGN IS OR WILL BE AVAILABLE WHEN YOU WOULD LIKE TO PURSUE IT OR THAT YOU ARE ELIGIBLE. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AT ANY TIME WITHOUT NOTICE.
9. EXTERNAL SITES
The Platform may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
10. REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
10.1 Representations and Warranties. You hereby represent, warrant, and covenant that:
• You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and any other works that you incorporate into your User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;
• You shall use the Platform in compliance with all applicable laws;
• Use of your User Content in the manners contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and
• You shall not submit to the Services any User Content that violates our campaign or usage guidelines set forth above.
10.2 Indemnification. You agree to defend, indemnify, and hold Create.It and our officers, directors, employees, successors, licensees, and assigns (collectively, the “Create.It Parties”) harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (i) your breach of this Agreement; (ii) your access to, use, or misuse of the Content, the User Content, or the Platform, and (iii) your violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
11. COMPLIANCE WITH APPLICABLE LAWS
The Platform is based in the United States. We make no claims concerning whether the Campaigns, the Submissions, the Create.It Content, the Content, or the Trademarks may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Platform from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
12. TERMINATION OF THE AGREEMENT
We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Platform, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Platform at any time without prior notice or liability.
13. DIGITAL MILLENNIUM COPYRIGHT ACT
Create.It respects the intellectual property rights of others and attempts to comply with all relevant laws. We will review all claims of copyright infringement received and remove any Create.It Content, Content, or Submissions deemed to have been posted or distributed in violation of any such laws.
Our designated agent under the Digital Millennium Copyright Act (the “Act”) for the receipt of any Notification of Claimed Infringement which may be given under that Act is as follows:
If you believe that your work has been copied on the Platform in a way that constitutes copyright infringement, please provide our agent with notice in accordance with the requirements of the Act, including (i) a description of the copyrighted work that has been infringed and the specific location on the Platform where such work is located; (ii) a description of the location of the original or an authorized copy of the copyrighted work; (iii) your address, telephone number and e-mail address; (iv) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; (v) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (vi) an electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
This Agreement is governed by the internal substantive laws of the State of California, without respect to its conflict of laws provisions. You expressly agree: (i) to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of California; and (ii) that the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Create.It, either specific or general, in jurisdictions other than California. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: Sections 5-8, 10, and 14-15.
Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
15.1 “Awards” means the awards offered to Creators in connection with an RFP and provided to the winning Submission or Submissions in accordance with the Official Rules and the Campaign Site.
15.2 “Campaign” means an individual project, contest, audition, tryout, advertising campaign, or other opportunity of the Client that is the subject of an RFP.
15.3 “Campaign Rules” means the rules drafted by Client (or by a third party on behalf of Client) for a particular Campaign that appear on a Campaign Site that amend, supplement, or supersede any term or condition in the Official Rules.
15.4 “Campaign Site” means the webpage operated by Client (or by a third party on Client’s behalf) that describes the specific details of a Campaign, including any Campaign Rules.
15.5 “Client” means a person or entity that submits an RFP and administers a Campaign in accordance with Section 2.
15.6 “Creator” means an individual or company that submits one or more Submissions in response to an RFP.
15.7 “Official Rules” means the general rules governing the RFP process, which may be amended, supplemented, or superseded by the Campaign Rules.
15.8 “RFP” means a request for proposal submitted by Client via the Platform soliciting Submissions for a particular Campaign.
15.9 “Services” means the online crowdsouring services provided by Create.It via the Platform, which may be amended by Create.It from time to time.
15.10 “Submission” means content and materials submitted by Creators in response to an RFP.
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