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Terms and Conditions

 

1. GENERAL DESCRIPTION OF SERVICE

  1. Embershot.com is a website and service that is owned and operated by Embershot Inc. dba Embershot (“Embershot”), with its principle office located at 15332 Antioch St #475 Pacific Palisades, CA 90272. P: 310-684-3968 f: 310-438-5986 email: support@embershot.com. By choosing to use this website (and affiliated domains, including Embershot.com) and the services offered by Embershot through this website and related mobile applications (including the "Embershot App") (collectively, the "Service"), you are agreeing to all of the terms and conditions of set forth herein ("Terms of Use") and the terms and conditions of the privacy policy of Embershot ("Privacy Policy") which are incorporated herein by this reference, for the duration of the Membership Term (as defined in Section 2 below).
  2. The Service provides an online document hub that serves individuals, businesses, corporations, and their employees by allowing its users to upload, share and store their documents, audio files, videos, scripts, notes, memos, videos and other files onto Embershot's secured Cloud network. Members are able to easily communicate and manage productions by inviting and controlling other members' permission rights to view, print, share and edit texts, drafts, videos and other production documents and materials. Members can access uploaded content anywhere via any computer and iOS or Android mobile device (utilizing the Embershot App). Members may now or in the future view each other's profiles, communicate with other members on the Service, and share or submit, for example, scripts, texts, drafts, documents, videos and promotional materials, for the purpose of facilitating interaction among individual members and companies. The Service is available to you for the duration of the Membership Term.
  3. Embershot reserves the right to change, add or remove portions of these Terms of Use at any time, but if Embershot does so, Embershot will post such changes on this web page. You agree to periodically review the Terms of Use from time to time to take notice of any changes Embershot makes. Your continued use of the Service following the posting of notice of any changes in these operating rules, will indicate acceptance by you of such rules, changes, or modifications.
  4. Embershot reserves the right to change, suspend or discontinue any aspect of the Service at any time, including the availability of any Service feature, database, or content. Embershot may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
  5. Certain products or services offered by the Service may be governed by additional terms and conditions, such as, but not limited to nondisclosure agreements and release agreements that you may enter into with Embershot while using the Service ("Additional Terms"), which shall supplement these Terms of Use. In such event you must agree to such Additional Terms prior to using those products or services to which the Additional Terms apply. Unless specifically stated otherwise, in the event that any provisions of the Additional Terms conflict with these Terms of Use, then the Additional Terms shall govern with respect to solely those conflicting provisions.
  6. The Service is intended solely for persons who are 18 years old or older. Any access to or use of the Service by anyone under 18 years of age is expressly prohibited. By accessing or using the Service, you represent and warrant that you are either more than 18 years of age or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use. Please read the specific policies regarding collection and use of information for users under 13 years of age contained in the Privacy Policy.

 2. MEMBERSHIP TERM 

 In order to access the primary features of the Service, each user will have to register with the Service and accept these Terms of Use. These Terms of Use shall be in effect for the duration of your use of the Service, commencing upon the date that you shall register with the Service and accept these Terms of Use (the "Effective Date"), and continuing until you or Embershot cancels your membership, but in any event no longer than a period of one (1) year after the Effective Date, at which time your membership shall expire ("Membership Term"). Embershot will not automatically renew your membership for any additional Membership Term(s). In order to renew your membership you will have to follow the renewal process as provided by Embershot, which such process shall include your accepting these Terms of Use in which case a new Membership Term shall commence.

 3. ACCESS TO SERVICE 

  1.  Embershot hereby grants you permission to use the Service during the Membership Term as set forth in these Terms of Use, provided that:
    1. Your use of the Service as permitted is solely for your personal, internal business use;
    2. You agree to create only one account and will not share your account or login information with other users;
    3. You will not copy or distribute any part of the Service in any medium without the prior written authorization of Embershot;
    4. You will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose;
    5. You take responsibility for all activities that occur under your account and accept all risks of unauthorized access; and
    6. You will otherwise comply with the terms and conditions of these Terms of Use.
  2.  In registering with the Service, you will be required to create an account by entering a valid email address and setting a password. In so doing, you represent and warrant that you shall not use another's account, username or password at any time without prior written permission from Embershot. When creating your account, you must provide accurate and complete information. You agree to maintain and promptly update your account information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure by logging off from your account at the end of each session and immediately notifying Embershot of any breach of security or unauthorized use of your account.
  3. Prohibited Activities : You are hereby placed on notice that any access of the Service for purposes of monitoring or copying content (including names and images of other users) made available solely to Members is strictly prohibited. In addition to the foregoing, the following conduct constitutes a material breach of these Terms and shall require you to indemnify and hold Embershot harmless under Section 14 ("Indemnity") below:
    1. Creating screenshots, printouts, or other duplicated images of other user's or member's profiles, files, scripts, and documents and distributing, transferring or otherwise providing such materials to any third party without the subject user/member's advance written consent;
    2. Collecting or harvesting any personally identifiable information, including account names and names and images of other users, from the Servic
    3. Using the communication systems provided by the Service for any commercial solicitation purposes absent Embershot's advance written consent.
    4. Using any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor the Service or any portion thereof;
    5. Accessing or using the Service for competitive purposes;
    6. Disguising the origin of information transmitted to, from, or through the Service;
    7. Impersonating another person or representative of an organization;
    8. Distributing viruses or other harmful computer code;
    9. Allowing any other person or entity to impersonate you to access or use the Service
    10. Using the Service for any purpose in violation of local, state, national, international laws or regulations;
    11. Using the Service in a way that is intended to harm, or a reasonable person would understand would likely result in harm, to the user or others; and
    12. Circumventing any measures implemented by us aimed at preventing violations of the Terms of Use.
  4. You acknowledge that Embershot allows system admins (the "User Content Admin"), to add, delete, and manage users' control permissions for their specific projects and materials uploaded via the Service, including limiting access permissions to view only, print, download, edit, access via mobile reader app, or to terminate automatically on a specified self-destruct date. You are aware that your access to specific content may be terminated or limited at the will of the User Content Admin. Embershot is not responsible for your inability to access such content and you indemnify Embershot , its officers, employees, agents, successors, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related thereto.
  5. The Service provides features for members to share files, scripts, and documents with others or to make it public. There are many things that members may do with shared and public content (for example, copy it, modify it, re-share it without your consent). Please consider carefully what you choose to share or make public. Embershot has no responsibility for any such activity.

4. FEES AND PAYMENTS 

 As a condition to your use and access to the Service, in whole or in part, you shall pay all fees and charges incurred through your account at the rates in effect for the billing period in which such fees and charges are incurred. All fees and charges shall be billed to and paid for by you in accordance with any then-current payment policies. You shall pay all applicable taxes relating to use of the Service through your account. A schedule of all such current fees, charges, and/or payment policies is available by contacting support@embershot.com and is incorporated into these Terms of Use by this reference. Embershot reserves the right at any time to modify or change such fees or to charge additional fees for access to portions of the Service or the Service as a whole, provided that Embershot agrees to obtain your prior agreement to pay such charges. Thus, in such event, Embershot will give you advance notice of such change of fees and the opportunity to cancel your membership before such charges are imposed. All new fees, if any, will be posted here and in other appropriate locations on the Service.

5. CONTENT OF SERVICE 

  1. The contents of the Service are provided AS IS and are intended for your personal, internal business use. All materials published on the Service (including, but not limited to text, software, photographs, images, illustrations, sounds, music, and videos, also known as the "Content") are protected by and subject to copyright, trademark, patent, trade secret and other laws and are owned or controlled by Embershot or its partners, vendors, licensors agents and/or representatives (whether or not such persons are credited as the provider of the Content). Embershot reserves all rights in and to the Content not expressly granted to you hereunder. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Service.
  2. The Service and its Contents are protected by copyright pursuant to U.S. and international copyright laws. You may not modify, publish, broadcast, transmit, participate in the transfer or sale of, reproduce (except as provided in this Section 4), create new works from, distribute, perform, display, or in any way exploit, any of the Content or the Service in whole or in part.
  3. Copying or storing of any Content for other than personal use is expressly prohibited without the prior written permission of Embershot .
  4. You shall have no rights to the proprietary software and related documentation, or any enhancements or modifications thereto, provided to you in order to access the Service ("Access Software"). You may not sublicense, assign or transfer any licenses granted by Embershot , and any attempt at such sublicense, assignment or transfer shall be null and void. You may make one copy of such software for archival purposes only. You may not otherwise copy, distribute, modify, reverse engineer, or create derivative works from Access Software.

6. CONTENT SUBMITTED BY YOU 

  1.  You are solely responsible for the content of any submission you make to the Service. Such content shall include, without limitation, scripts, memos, notes, texts, files, photos, videos, music, sounds, messages, and other production related documents submitted by you and other users ("User Content") for the purpose of hosting, sharing, displaying or publishing such User Content ("posting") via the Service. Without limiting the foregoing, for purposes of clarification, User Content shall include any and all content made available through the Service by its users, including, without limitation, individuals, corporations and their employees (union, non-union, independent or otherwise) and including users of Embershot or users of Embershot Websites which content is made available through Embershot .
  2.  You shall be solely responsible for your own User Content and the consequences of posting them. In connection with your own User Content, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Embershot to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable the inclusion and use of the User Content by the Service and these Terms of Use; (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in each item of the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Service and these Terms of Use, and (iii) Embershot is not able to return to you any copies of User Content submitted by you and you agree that you have and shall at all times retain at least one copy of each item of User Content and do hereby release Embershot from any and all liability for loss or other damage to any copies of User Content.
  3.  For clarity, Embershot does not claim any ownership rights in and to the User Content that you post via the Service, and between you and Embershot , you retain all of your ownership rights therein and thereto. However, by submitting the User Content to Embershot , you hereby grant to Embershot a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, modify, display, and perform the User Content in connection with the Service and its (and its successor's) business, including, without limitation, for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channel. In that connection, you hereby waive any moral rights you may have in respect of any alteration of modification of any item of User Content by Embershot . You also hereby grant permitted users of the Service a non-exclusive license to access your User Content through the Service, and to use, reproduce, distribute, modify, display and perform such User Content as solely permitted through the functionality of the Service and under these Terms of Use. Embershot ' non-exclusive rights in and to User Content as described in this subparagraph shall continue in perpetuity unless and until you shall remove such User Content from your account or profile or otherwise cancel your membership or your membership shall expire as provided hereunder or your access and control permissions for a specific project were limited or terminated by the User Content Admin. Notwithstanding the foregoing, you may, from time to time, enter into Additional Terms with Embershot or one or more of its partners, vendors, licensors, agents, and/or representatives, regarding the use of certain User Content. In such event, you acknowledge that such User Content shall be subject to the Additional Terms.
  4. You may remove any User Content submitted or posted by you to your member profile at any time by: (1) mailing or sending by facsimile transmission a signed and dated copy of a written request with specific reference to the particular User Content you wish to be removed; (2) sending an email notification with such request; or (3) logging in to your online account with Embershot and using the removal/edit prompts contained therein. Embershot shall use its commercially reasonable efforts to remove User Content promptly following its receipt of your request of same, but no later than 10 days from it receipt thereof.

    If requesting removal of User Content by mail: 
    FileTrack Inc. dba Embershot
    15332 Antioch St #475
    Pacific Palisades, CA 90272

     If requesting removal of User Content by fax: 
    310-438-5986

     If requesting removal of User Content by email: 
    support@embershot.com  
    Please note that you may not remove any User Content to which you have granted additional rights such as ownership or exclusive usage rights, pursuant to Additional Terms.
  5. Your grant of rights in and to the User Content that you post via the Service shall in no way be construed as an obligation of Embershot to display or otherwise use any item of User Content on the Service. Further, you acknowledge and agree that with respect to your submitting to Embershot any item of User Content via the Service, Embershot has no intent to compensate you in any way and that you have no expectation of any compensation.
  6. Embershot, its affiliates and related entities, do not accept unsolicited materials or ideas for use or publication in its publications, broadcast programming, or its digital and electronic media. As such, Embershot, its affiliates and related entities shall not be responsible for the similarity of any of its content or programming in any media to materials or ideas transmitted or submitted to the Service.
  7. In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant to Embershot all of the license rights granted herein; (ii) publish falsehoods or misrepresentations; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; or (iv) post advertisements or solicitations of business except as may be specifically requested and/or authorized by Embershot. Embershot does not endorse any User Content or any opinion, recommendation, or advice expressed therein, and Embershot expressly disclaim any and all liability in connection with User Content. Embershot does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and Embershot will remove all User Content if properly notified that such User Content infringes on another's intellectual property rights. Embershot reserves the right to remove User Content and/or terminate your access to the Service without prior notice for any reason. Embershot also reserves the right to decide whether User Content is appropriate and complies with these Terms of Use for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length.
  8. In particular, if you are a copyright owner or an agent thereof and believe that any item of User Content or other material on the Service infringes upon your copyrights, you may submit a notification to Embershot of such claim, provided that you must submit your notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing the Copyright Agent for Embershot with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
    •  A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    •  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;
    •  Identification of the material 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;
    •  Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail address;
    •  A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
    •  A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  9. The designated Copyright Agent for Embershot to receive notifications of claimed infringement is: Nicole Stephens support@embershot.com. For clarity, only DMCA notices should go to the Copyright Agent. Other feedback, comments, requests for technical support, and other communications should be directed to Customer Service. You acknowledge that if you fail to comply with all of the requirements of this Section 5(g), your DMCA notice may not be valid.
  10. If you are the owner of any intellectual property other than copyrighted materials (such as, for example, a trademark), or an agent thereof, and believe that any item of User Content or other materials on the Service infringes upon your rights in such intellectually property, you must submit a notification to Embershot in the same manner as provided above in respect of notice of copyright infringement, including providing the same information in writing to the designated Copyright Agent set forth above.

 7. NO LIABILITY FOR USER CONTENT AND USER INTERACTION. 

  1. You understand that when using the Service, you will have access to or otherwise be exposed to User Content from a variety of sources, and that Embershot is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Embershot with respect thereto, and agree to indemnify and hold Embershot, its successors, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Service.
  2. It is further acknowledged and understood that the Service may provide features and functionalities that facilitate interactions between users and between users and organizations and/or individuals independent from Embershot and its users.
  3. Your interactions with other parties found on or through the Service (i.e. organizations and/or individuals posting scripts or creative written materials for development, pre-production, and post production purposes), including, without limitation, payment and delivery of goods or services, and any other terms, conditions, obligations, warranties or representations associated with such dealings, are solely between you and such other parties. In that connection, you should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any other user or third party organization and/or individual found on or through the Service.
  4. You agree that Embershot shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between users on the Service, or between users and any third party, you understand and agree that Embershot is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby forever release Embershot, its officers, employees, agents and successors, affiliates, and/or licensors from all claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Service and agree to indemnify and hold Embershot, its officers, employees, agents successors, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related thereto. If you are a California resident, you expressly waive California Civil Code Section 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 or her settlement with the debtor."
  5. Notwithstanding terms discussed herein, you acknowledge that the Service allows User Content Admins to add, delete, and manage users' control permissions for their specific projects and materials uploaded via the Service, including limiting access permissions to view only, print, download, edit, access via mobile reader app, or to terminate automatically on a specified self-destruct date. You are responsible for maintaining copies of any User Content uploaded via the Service and are aware that your access to specific content may be terminated or limited at the will of the User Content Admin. Embershot is not responsible for your inability to access such content and you indemnify Embershot, its officers, employees, agents, successors, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related thereto.

8. PRIVACY POLICY 

 As stated above, these Terms of Use include the terms and conditions of the Privacy Policy, a copy of which is located here, and which is hereby incorporated by reference. In the event that there exists any inconsistency between these Terms of Use and the Privacy Policy, the terms and conditions of the Privacy Policy shall control.

9. LINKS 

 The Service may contain links to third party websites that are not owned or controlled by Embershot. Embershot has no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party websites. In addition, Embershot will not and cannot censor or edit the content of any third-party site. By using the Service, you expressly release Embershot from any and all liability arising from your use of any third-party website. Accordingly, Embershot encourages you to be aware when you leave the Service and to read the terms and conditions and privacy policy of any other website that you visit. Accessing any such links from Embershot to gain access to other websites is at your own risk.

10. NO PROMISE OF SPECIFIC RESULT 

You acknowledge that certain features of the Service may allow or facilitate interaction between and among its users, including between and among writers, directors, producers, creative and studio executives, studio departments, production companies and teams, actors, agents, managers and other entertainment professionals. In that connection, Embershot does not promise that you will obtain any specific result (for example, but not limited to, completion and development of scripts) from your use of the Service. As such, Embershot specifically disclaims any liability for the actions of any of its users or the information contained on the Service, or for the consequences of any actions taken by you on the basis of the actions of any of its users or the information contained on the Service.

11. ADDITIONAL WARRANTY DISCLAIMER 

 You agree that your use of the Service shall be at your sole risk. To the fullest extent permitted by law, Embershot , its officers, directors, employees, and agents disclaim all warranties, express or implied, in connection with the Service and your use thereof. Embershot makes no warranties or representations about the accuracy or completeness of the content of the Service or the content of any sites linked to this Service and assume no liability or responsibility for any

  1. errors, mistakes, or inaccuracies of content,
  2. personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Service,
  3. any unauthorized access to or use of the secure servers of Embershot and/or any and all personal information and/or financial information stored therein,
  4. any interruption or cessation of transmission to or from the Service,
  5. any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Service by any third party, and/or
  6. any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available via the Service. Embershot does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Service or any hyperlinked website or featured in any banner or other advertising, and Embershot will not be a party to or in any way be responsible for monitoring any transaction between you and third-party providers of products or services. As with the purchase of a product or service through any medium or in any environment, you should use your best judgment and exercise caution where appropriate.

12. LIMITATION OF LIABILITY 

 In no event shall Embershot , its officers, directors, employees, or agents, be liable to you for any direct, indirect, incidental, special, punitive, or consequential damages whatsoever resulting from any

  1. errors, mistakes, or inaccuracies of content,
  2. personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the Service,
  3. any unauthorized access to or use of the secure servers of Embershot and/or any and all personal information and/or financial information stored therein,
  4. any interruption or cessation of transmission to or from the Service,
  5. any bugs, viruses, trojan horses, or the like, which may be transmitted to or through the Service by any third party, and/or
  6. any errors or omissions in any content or for any loss or damage of any kind incurred as a result of your use of any content posted, emailed, transmitted, or otherwise made available via the Service, whether based on warranty, contract, tort, or any other legal theory, and whether or not the company is advised of the possibility of such damages. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the applicable jurisdiction. You specifically acknowledge that Embershot shall not be liable for user content or the defamatory, offensive, or illegal conduct of any third party and that the risk of harm or damage from the foregoing rests entirely with you. The Service is controlled and offered by Embershot from its facilities in the United States of America. Embershot makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

13. CALIFORNIA LABOR CODE BOND REQUIREMENT

 Pursuant to California Labor Code §1703.3, Embershot has filed with the Labor Commission of the State of California a bond in the amount of fifty thousand dollars ($50,000) executed by Aegis Security Insurance Company of Platte River Insurance Company Bond# PB11510701192.

14. INDEMNITY

 You agree to defend, indemnify and hold harmless Embershot , its successors, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys' fees) arising from:

  1. your use of and access to the Service;
  2. your violation of any term of these Terms of Use;
  3. your violation of any third party right, including without limitation any copyright, intellectual property, or privacy right; or
  4. any claim that any item of your User Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of the Service.

15. ASSIGNMENT 

 These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Embershot without restriction.

16. CANCELLATION 

  1. CANCELLATION BY Embershot . Embershot may, in its sole discretion, cancel or suspend your access to all or part of the Service for any reason, including, without limitation, breach or assignment of these Terms of Use (including, without limitation, the engaging in any of the Prohibited Activities listed in the section above or using or sharing another's account without Embershot's express written consent. You may only use the Service for your own lawful internal business purposes. It is your obligation to comply with all applicable state, federal and international laws.
  2. YOUR RIGHT TO CANCEL. You may cancel your membership with Embershot and these Terms of Use and obtain a full refund, without any penalty or obligation, if notice of cancellation is given, in writing, within 10 business days from the Effective Date. For the purposes of this section, business days are Monday through Friday. To cancel your membership and these Terms of Use, you may:
    1. mail or send by facsimile transmission a signed and dated copy of a written notice of cancellation of your membership;
    2. send an email notification with "notice of cancellation"in the subject line; or
    3. log in to your online account with Embershot use the cancellation prompts contained therein. Cancellation notices must be sent NOT LATER THAN MIDNIGHT of the 10th business day from the Effective Date. If you cancel, all membership fees that you have paid to Embershot shall be refunded to you within 10 business days after delivery of the cancellation notice to Embershot . You may cancel your membership with Embershot at any time after the expiration of the 10 business days from the Effective Date by following the same procedures as described in this section, PROVIDED you shall not be entitled to receive any refund (full or prorated) of the membership fees that you have paid to Embershot prior to such cancellation.

 If cancelling by mail: 

Embershot

1223 Wilshire Blvd
Santa Monica, CA 90403-5400

 If cancelling by fax: 
310-438-5986

 If cancelling by email: 
support@embershot.com 

(type "notice of cancellation" in subject line")

 17. NO AGENCY RELATIONSHIP.

THE SERVICE IS AN ONLINE SCRIPT/DOCUMENT HUB OR VENUE FOR VIEWING BY INTERESTED PARTIES. NO INDEPENDENT CONTRACTOR, AGENCY, PARTNERSHIP, JOINT VENTURE, EMPLOYER-EMPLOYEE OR FRANCHISER-FRANCHISEE RELATIONSHIP IS INTENDED OR CREATED BY THESE TERMS OF USE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH HEREIN, Embershot IS NOT ACTING AND DOES NOT ACT AS AN AGENT FOR ANY MEMBER OR ANY OTHER USER OF THE SERVICE. THESE TERMS OF USE DO NOT CONSTITUTE A LITERARY OR TALENT AGENCY CONTRACT. ONLY A LITERARY OR TALENT AGENT LICENSED PURSUANT TO SECTION 1700.5 OF THE CALIFORNIA LABOR CODE MAY ENGAGE IN THE OCCUPATION OF PROCURING, OFFERING, PROMISING, OR ATTEMPTING TO PROCURE EMPLOYMENT OR ENGAGEMENTS FOR A WRITER. Embershot IS PROHIBITED BY LAW FROM OFFERING OR ATTEMPTING TO OBTAIN ENGAGEMENTS OR EMPLOYMENT FOR YOU. FOR MORE INFORMATION, CONSULT CHAPTER 4.5 (COMMENCING WITH SECTION 1701) OF PART 6 OF DIVISION 2 OF THE CALIFORNIA LABOR CODE. A DISPUTE ARISING OUR OF THE PERFORMANCE OF THESE TERMS OF USE THAT IS NOT RESOLVED TO THE SATISFACTION OF THE WRITER SHOULD BE REFERRED TO A LOCAL CONSUMER AFFAIRS DEPARTMENT OR LOCAL LAW ENFORCEMENT, AS APPROPRIATE. 

18. NOTICE TO INTERNATIONAL USERS

 The Service and related websites and mobile applications are all hosted in the United States. If you are accessing the Service from the European Union, Australia, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, you are transferring your personal data to the United States which does not have the same data protection laws as such other regions. By providing your information to and otherwise interacting with the Service, you are consenting to the transfer of your information to the United States for processing and maintenance in accordance with the Terms of Use (including the Privacy Policy). You are also consenting to the application of United States law in all matters concerning the Service.

19. MISCELLANEOUS

 You agree that:

  1. The Service shall be deemed solely based in California; and
  2. the Service shall be deemed a passive website that does not give rise to personal jurisdiction over Embershot , either specific or general, in jurisdictions other than California. These Terms of Use shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and Embershot that arises in whole or in part from the Service shall be decided exclusively by a court of competent jurisdiction located in Los Angeles County, California. You and Embershot agree that any cause of action arising out of or related to the Service must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. These Terms of Use, together with the Privacy Policy and any Additional Terms and any other legal notices published by Embershot via the Service, shall constitute the entire agreement between you and Embershot concerning the Service. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and the failure by Embershot to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

SUPPLEMENTAL TERMS &  CONDITIONS FOR EMBERSHOT USERS

The following Supplemental Terms and Conditions (“T&Cs”) govern your use of the paid file-sharing service offered by embershot.com (the “Embershot Service”). Your use of the Embershot Service constitutes an acceptance of these T&Cs. Please read the T&Cs carefully before using the Embershot Service. The T&Cs supplement the existing Terms and Conditions and Privacy Policy of embershot.com. To the extent there is any inconsistency between Terms and Conditions and Privacy Policy of embershot.com and these T&Cs, these T&Cs will govern.

The Embershot Services provides is a platform that allows users to offer and sell access to certain electronic files and content generated by the subject user. Please note, Embershot does not own or sell any content generated and/or uploaded by users. Any sale of access is between the uploading user (hereafter, “Seller”) and the user who purchases access to the Seller’s content (hereafter, “Buyer”). Embershot solely provides a marketing platform and is not a party to the actual sale between Buyers and Sellers.

While we may provide pricing and other guidance via the Embershot Service, such guidance is solely informational and may, in whole or in part, rely on information provided by the Sellers. In addition, while Embershot may help facilitate the resolution of disputes through various programs, Embershot has no control over and does not guarantee the existence, quality, or legality of any items offered by Sellers through the platform, the truth or accuracy of Seller’s content; the ability of Seller’s to sell access to content items; the ability of Buyers to pay for access to Seller content; or that a Buyer or Seller will actually complete a transaction.

You must be 18 years old to be able to utilize the Embershot Service either as a Seller or Buyer. The content offered by Sellers may contain offensive language/scenes and may not be suitable for all audience.

In consideration of your use of the Embershot Service, you agree to:

  1. provide true, accurate, current and complete information about yourself as prompted by any registration form that you may complete to access the Embershot Service (such information being the "Registration Data") and
  2. maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any Registration Data that is untrue, inaccurate, not current or incomplete, or Embershot has grounds to suspect that such Registration Data is untrue, inaccurate, not current or incomplete, Embershot has the right to suspend or terminate your account and refuse any and all current or future use of the Embershot Service (or any portion thereof).

You may receive account login information upon completing the registration process on the Embershot Service. You are responsible for maintaining the confidentiality of any such password, digital signature and account, and are fully responsible for all activities that occur under your password, digital signature or account. You agree to

  1. Immediately notify Embershot of any unauthorized use of your password, digital signature or account or any other breach of security, and
  2. Ensure that you exit from your account at the end of each session. Embershot cannot and will not be liable for any loss or damage arising from your failure to comply with this paragraph.

Joining the Embershot Service is free. The Seller may set certain fees for sharing access to content uploaded by the Seller and such access may be limited in duration. The quoted fees only allow for sharing of the Seller’s content by the Buyer via the Embershot platform. It does not include or otherwise allow for downloading or independent access to the Seller’s content. Embershot will receive a service charge from fees paid by the Buyer for access to the Seller’s content equal to twenty percent (20%) of the fees submitted by the Buyer. Fees will be disclosed on the dedicated page for accessing the Seller’s content. By using the Embershot Service, users (Buyers or Sellers) agree to be bound by and pay all fees according to the terms of the T&Cs and content to Embershot’s retention of its service charges. Users are solely responsible for paying all fees and applicable taxes associated with the Embershot Service with a valid payment method by the payment due date. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with us, retaining collection agencies and legal counsel. In addition, you will be subject to late fees and we may suspend or restrict you from using our sites, services, applications, and tools until full payment is made. Embershot, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your user rating. Unless otherwise stated, all fees are quoted in United States Dollars.

PROPRIETARY RIGHTS IN THE EMBERSHOT PLATFORM

As between you and Embershot, Embershot owns, solely and exclusively, all rights, title and interest in and to the Embershot platforms, all the content (including, for example, audio, images, photographs, illustrations, text, graphics, logos, button icons, other visuals, video, copy, etc.), software, code, data and materials thereon, the look and feel, design and organization of the Embershot platforms and related websites and mobile application, and the compilation of the content, code, data and materials on the Embershot platforms, including but not limited to any copyrights, trademark rights, patent rights, database rights, trade secrets, moral rights (including the rights of authorship and attribution and subsequent modification), sui generis rights and other intellectual property and proprietary rights (whether registered or unregistered in any jurisdiction) therein. Your use of the Embershot Service does not grant to you ownership of any content, software, code, data, or materials you may access on the Embershot platforms.

PROHIBITED USE

By using the Embershot Services, all users (Sellers and Buyers) represent and warrant that they shall obey all applicable federal, state and local laws. Any use of the Embershot Service that violates any applicable laws will be grounds for discontinuing your rights to the Embershot Service. The Embershot Service is created and operated from the United States.

You are prohibited from utilizing this Web site for any illegal or unauthorized purpose or contrary to Embershot’s terms and conditions, including but not limited to the following:

  1. Fraud/Deception – You may not engage in fraudulent, deceptive or intentionally disruptive or malicious activity of any kind;
  2. Intellectual Property Infringement – You agree not to post any content to the Embershot Service which infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party; 
  3. Offensive Content – You agree not to post any content to the Embershot Service that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortuous, tortious, contains obscene language or obscene references, contains explicit or graphic descriptions or accounts of sexual acts, or otherwise violates Embershot’s Terms and Conditions; 
  4. Compromise/Disruption of Embershot Service – You are prohibited from engaging in activity that compromises the Embershot Service, including but not limited to: any hacking, distribution of malicious software, spamming, mail bombing or crashing. You agree not to post any content to the Embershot Service which contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third-party;
  5. Unauthorized Access – Any access to the Embershot Service by means of any unauthorized process, including but not limited to manually scraping or utilizing spiders, bots or any similar devices, is prohibited;
  6. Copying or Modifying Embershot Content - Any duplication of the pages or modification of the Embershot Service (including the contents of its websites or mobile applications), without the advance written permission of Embershot, is a violation of the T&Cs;
  7.   Illegal Activity - You may not use the Embershot Service for any purpose or in any manner which violates any local, state, national, or international laws and regulations;

COPYRIGHT

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Embershot Service infringes their rights under U.S. Copyright law. If you believe in good faith that materials appearing on the Embershot Service infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked.

In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. One place to find more information is the U.S. Copyright Office Web Site, currently located at http://www.loc.gov/copyright .

In accordance with the DMCA, Embershot has designated an agent, Nicole Stephens, to receive notification of alleged copyright infringement in accordance with the DMCA at Dispute@embershot.com .

Please note: If you materially misrepresent that online material, product, or activity is infringing your copyrights, you may be liable for damages (including court costs and attorneys' fees) and could be subject to criminal prosecution for perjury. We suggest that you consult your legal advisor before filing a notice or counter-notice.

INDEMNITY

You agree to defend, indemnify on demand and keep Embershot indemnified, and hold Embershot and any of its affiliates and or related entities, and their directors, officers, employees and agents harmless from any and all claims, liabilities, costs, losses (including without limitation consequential and indirect losses) and expenses, including reasonable attorneys' fees, arising in any way from your use of the Embershot Service, Embershot platforms or the services thereon, your placement or transmission of any message, content, information, software or other materials through the Embershot platforms, or your fraudulent or deceptive acts or omissions, or breach or violation of the law (including infringement of any intellectual property or other right of any person or entity) or of these T&Cs. Embershot reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Embershot's defense of such claim.

Dispute Resolution / Release

Embershot is a medium facilitating Buyers and Sellers; a forum to transact.  We do not own or inventory any content accessible via the Embershot Service (except as denoted above). We are not party to any financial transactions between users (Buyers and Sellers).   As a courtesy to our users, we may look into disputes between users and give our best efforts to help resolve any issues between them. To file a dispute you must submit an email to Dispute@embershot.com  within 5 days of dispute. The email must include:

  • Your name and contact information
  • Your account information and any reference numbers
  • The URL of the Content
  • A detailed account of your dispute

Once the dispute information has been received by us, we will investigate the issues and notify both parties the outcome of our investigation.

Because we are not party to any of the transactions, in the event that we may have a dispute with any users, you release Embershot (and our officers, directors, employees and agents) from any and all claims, demands, damages of every kind and nature, known and unknown, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which states: “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 or her settlement with the debtor.”

In event of dispute on bidding by users, the bid that registers first in our data audit system is the one that will be valid.

 Agency

No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

Embershot is not the agent, employer, fiduciary, trustee or other representative of any Buyer or Seller. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created either by the T&Cs. Nothing expressed or mentioned in or implied from this Agreement is intended or shall be construed to give to any person other than the parties hereto any legal or equitable right, remedy or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions and provisions hereof are intended to be and are for the sole and exclusive benefit of Embershot and you.  You acknowledge agree that Embershot is NOT acting as a trustee, fiduciary or escrow agent with respect to any transactions and your funds.

Right to Monitor and Editorial Control

Embershot reserves the right, but does not have an obligation, to monitor and/or review all information and materials posted to the Embershot platforms or through the Embershot platform's services or features by users, and Embershot is not responsible for any such information and materials posted by users. However, Embershot reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in Embershot's sole discretion are objectionable or in violation of these T&Cs, Embershot's policies or applicable law. We may also impose limits on certain features of the Embershot Service or restrict your access to part or all of the Embershot Service without notice or penalty if we believe you are in breach of the guidelines set forth in this paragraph, or for any other reason, without notice or liability.

Disclaimer of Warranties

The Embershot Service, including, without limitation, all services, content, functions and materials, is provided "as is," "as available," without warranty of any kind, whether express or implied by statute, common law or otherwise, for information, data, data processing services, uptime or uninterrupted access, any warranties concerning the availability, accuracy, usefulness, or content of information, any warranties of title, non-infringement, merchantability or fitness for a particular purpose, and any implied warranty arising from course of dealing or usage of trade, and we hereby disclaim any and all such warranties, express and implied. We do not warrant, represent or covenant that the Embershot Service, platforms, content, functions or materials contained therein will be timely, secure, uninterrupted or error free, or that defects will be corrected. We make no warranty that the Embershot Service will meet user’s requirements. No advice, results or information, whether oral or written, obtained by you from us or through the Embershot Service shall create any warranty not expressly made herein. Embershot also assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Embershot platforms or your downloading of any materials, data, text, images, video, audio or software from the Embershot platforms. If you are dissatisfied with the Embershot platforms, your sole remedy is to discontinue using the Embershot Service.

Embershot is not responsible and disclaims all liability in the event that the transaction between buyer and seller fails to complete. You agree that Embershot will not be responsible for any false or misleading information you provide, whether intentionally or unintentionally.

Limitation of Liability

 Embershot is a platform facilitating Buyers and Sellers as a forum to transact. WE ARE NOT a representative for Sellers or Buyers.  In no event shall Embershot or its affiliates or any of its directors, officers, employees, agents or content or service providers (collectively, the "protected entities") be liable, whether in an action based on a contract indemnification, obligation, tort (including without limitation negligence), collaterally or arising from any statutory duty, pre-contract or other representations, or otherwise, however arising, for any economic losses (including, without limitation, loss of revenues, profits, contracts, business, goodwill or anticipated savings) or any direct, indirect, special, incidental, consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Embershot Service or the content, materials and functions related thereto, your provision of information via the Embershot Service, lost business or lost sales, even if such protected entity has been advised of the possibility of such damages. In no event shall the protected entities be liable for or in connection with any content posted, transmitted, exchanged or received by or on behalf of any user or other person on or through the Embershot platforms. In no event shall the total aggregate liability of the protected entities to you for all damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from the terms and conditions or your use of the Embershot Service exceed, in the aggregate, the amount, if any, paid by you to Embershot for your use of the Embershot Service.

The limitation of liability contained in this section apply to any damages or injury caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. You specifically acknowledge that Embershot is not liable for the defamatory, offensive or illegal conduct of other users or third parties and that the risk of injury from the foregoing rests entirely with you. Neither Embershot, any third-party content provider nor their respective agents shall be liable for any direct, indirect, incidental, special or consequential damages arising out of the use of or inability to access or use the sites or services, even if such party has been advised of the possibility of such damages. Embershot is not responsible and disclaims all liability in the event that the transaction between Buyer and Seller fails to complete.

TERMINATION

Embershot may terminate, change, suspend, add to or discontinue any aspect of the Embershot Service at any time, in our sole discretion, and without liability to any user. Embershot may restrict, suspend or terminate your use of or access to the Embershot platforms and/or its services if we believe you are in breach of or are attempting to breach our terms and conditions or applicable law, or for any other reason without notice or liability (including, for example, if we learn that you have provided us with false or misleading information, or interfered with other users or the administration of Embershot platforms or services). Embershot maintains a policy that provides for the termination in appropriate circumstances of the use of the Embershot Service where users are determined to be repeat infringers of intellectual property rights.