BY USING AND/OR VISITING THIS WEBSITE (collectively, including all Content available through the DigitalCandy.com domain name, the "Digital Candy Website", or "Website"), YOU (Sometimes called “CLIENT”) SIGNIFY YOUR ASSENT TO BOTH THESE TERMS AND CONDITIONS (the "Terms of Service") AND THE TERMS AND CONDITIONS OF DIGITALCANDY'S PRIVACY NOTICE, WHICH ARE PUBLISHED AT http://www.DigitalCandy.com/privacy.html, AND WHICH ARE INCORPORATED HEREIN BY REFERENCE. If you do not agree to any of these terms, then please do not use the Digital Candy Website.
A. Digital Candy hereby grants you permission to use the Website as set forth in this Terms of Service, provided that: (i) your use of the Website as permitted is solely for your use; (ii) you will not copy or distribute any part of the Website in any medium without Digital Candy's prior written authorization; (iii) you will not alter or modify any part of the Website other than as may be reasonably necessary to use the Website for its intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Terms of Service.
B. In order to access some features of the Website, you will have to create an account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Digital Candy immediately of any breach of security or unauthorized use of your account. Failure to notify Digital Candy of such a breach is a violation of this contract and breach of contract. Although Digital Candy will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Digital Candy or others due to such unauthorized use.
C. You agree not to use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses the Website in a manner that sends more request messages to the Digital Candy servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Digital Candy grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Digital Candy reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website, nor to use the communication systems provided by the Website for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Website with respect to their User Submissions.
3. Search & Notification
Digital Candy will automatically search for all content an Owner uploads across the Internet and provide a listing of where all of this content is found on the Internet. Digital Candy does not guarantee that all locations of content will be found. Digital Candy will eventually offer a service where you may choose to have notification letters sent to those persons or entities whom you believe are infringing offering to license, DMCA letters and letters to ask for assistance from council. If you participate in this program you must agree to both allow the alleged infringer to pay your regular license fees the first time they are notified without any further claim against the alleged infringer and to participate in mandatory arbitration pertaining to any infringement issues. Digital Candy does not and will not condone the actions of copyright trolls. If Digital Candy, in its sole discretion, believes a user is a copyright troll, it will cancel the user’s access to Digital Candy.
4. Digital Candy Services
You can now sell or license your images through our site. Here’s how it works. You set your own license fee or sale amount. License fees and types are different depending on the type of content (mime) Payments are made via PayPal & credit card and soon many other methods. You retain the listed percentage of your sales after costs. You must define usage rights. This means you tell your customer how they can use your content. We will provide you with real-time sales and traffic reporting and we will not charge you anything to get started. You may sell any content which you own exclusively or have the right to sell or license. If you don’t own the rights to sell or license then do not put the tracks on this site. If you do put someone else’s material up then you will be infringing their rights. Any intentional infringement is a breach of this contract for which you agree to indemnify us for any associated damages.
Digital Candy will soon have the ability to allow you to automate the filing of your copyrights. [COMING SOON] It is primarily setup for the filing of group claims. Our system does this filing in your name. If you download and install any of our camera or cell phone plugins you may setup your default copyright filing information and our system will file all images taken with the device at the designated time period. There is of course no guarantee that this filing will be accepted by the copyright office or that our system will actually make the filing happen correctly. (We think it will do it just fine, but we do have to disclaim all liability) You specifically agree to allow us to use the information provided by you to us to programmatically file the copyrights on your images for you. You specifically give us permission to file for you and to access this account as needed to update our records, thus making the information accessible to you inside Digital Candy. You acknowledge that the Copyright office may refuse registration of copyrights on any number of basis and as such we are not responsible for the response
The content on the Digital Candy Website, except all User Submissions (as defined below), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Mimes” or "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Digital Candy, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Website is provided to you AS IS for your information and use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Digital Candy reserves all rights not expressly granted in and to the Website and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of the Digital Candy Website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Digital Candy Website or the Content therein.
A. The Digital Candy Website may now or in the future permit the submission of communications / recordings made in the public of third parties and submitted by you and other users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Digital Candy does not guarantee any confidentiality with respect to any submissions.
B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Digital Candy to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Digital Candy, you hereby grant Digital Candy a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Digital Candy Website and Digital Candy's (and its successor's) business, including without limitation for promoting and redistributing part or all of the Digital Candy Website (and derivative works thereof) in any media formats and through any media channels. You also grant Digital Candy the right to embed tags in your content for purposes of tracing the content on the Internet. If you make your content publically accessible, you also hereby grant each user of the Digital Candy Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license to each user granted by you terminates once you remove or delete a User Submission from the Digital Candy Website.
C. In connection with User Submissions, 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 Digital Candy all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Digital Candy or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, 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; (iv) post advertisements or solicitations of business: (v) impersonate another person. Digital Candy does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Digital Candy expressly disclaims any and all liability in connection with User Submissions. Digital Candy does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Digital Candy will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. Digital Candy reserves the right to remove Content and User Submissions without prior notice. Digital Candy will also terminate a User's access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. Digital Candy also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, obscene or defamatory material, or excessive length. Digital Candy may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
D. As Digital Candy is a service provider it claims safe harbor under the Digital Millennium Copyright Act. In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by either uploading your copy of the content and claiming ownership or by providing our Copyright Agent (See below) with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the 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;
(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(v) 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
(vi) 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.
E. You understand that when using the Digital Candy Website, you will be exposed to User Submissions from a variety of sources, and that Digital Candy is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are 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 Digital Candy with respect thereto, and agree to indemnify and hold Digital Candy, its Owners/Operators, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the site.
F. Digital Candy permits you to link to materials on the Website for personal, non-commercial purposes only.
G. EMBEDING – Digital Candy provides you with the ability to embed your personalized Digital Candy window in to your own blog, website or forum. You understand that all material which originates from Digital Candy is solely owned by Digital Candy, Inc. and that this includes all material embedded in your own material even if you are the originator of the material and submitted it to Digital Candy for the purpose of being able to embed it in your own site. Further, you acknowledge that Digital Candy’s act of allowing you to place its material and intellectual property in your site in no way transfers any rights title or interest to said material.
H. DOWNLOADING / UPLOADING / EMBEDDING–
I – If you decide to allow your content to be downloadable or be included in embeddable searches by others you hereby provide an additional free license to those others for the use of your content. In addition you hereby indemnify Digital Candy, Inc and anyone who uses your content for any and all costs associated with their being sued if you have used the works of others without permission or infringe on another person or entities’ work.
II – If you wish to embed a Digital Candy search result which includes material not created by yourself, you understand that you are being provided a free license to use the said content and that you have no ownership rights in the other user’s content. If you are contacted by any third party claiming ownership rights to the contents of the search or anything embodied in the search you must immediately (1) take down the embedded search and (2) contact us at admin@DigitalCandy.com or through one of the other methods listed in CONTACT below.
I. SUBSCRIPTION SALES – Subject to the terms and conditions set forth herein, Digital Candy allows you to license a subscription to your content to third parties (any one that is not you or Digital Candy). Digital Candy will pay you 90% of the yearly fee, minus costs, thatyou charge to the licensing third party. You warrant that you own all right, title and interest in and to any licensed content you place within the Subscription system. If you breach this agreement in any way, including, but not limited to, the placing of content within the subscription system in which you do not have all rights then you will forfeit all associated income. You also agree to indemnify Digital Candy for any costs, including, but not limited to court fees, legal fees and any associated payments, associated with such a breach. The standard term of each subscription shall be for one (1) year, however you may modify this term as you like. The terms of this paragraph shall be subsumed to all other terms herein.
YOU AGREE THAT YOUR USE OF THE DIGITAL CANDY WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, DIGITALCANDY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. DIGITAL CANDY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONSIN 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 DIGITAL CANDY WEBSITE. DIGITAL CANDY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE DIGITAL CANDY WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND DIGITAL CANDY 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.
IN NO EVENT SHALL DIGITALCANDY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, WHETHER THROUGH NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL OR MALICIOUS ACTS OR OTHERWISE, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) 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 DIGITALCANDY WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER ORNOT 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 DIGITAL CANDY SHALL NOT BE LIABLE FOR USER SUBMISSIONS 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 Website is controlled and offered by Digital Candy from its facilities in the United States of America. Digital Candy makes no representations that the Digital Candy Website is appropriate or available for use in other locations. Those who access or use the Digital Candy Website from other jurisdictions do so at their own volition and are responsible for compliance with local law.
You agree to defend, indemnify and hold harmless Digital Candy, its parent corporation, 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 attorney's fees) arising from: (i) your use of and access to the Digital Candy Website; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any claim that one of your User Submissions caused damage to a third party or (v) any claims that you placed up for sale and or sold Digital Candy which you did not have a right to sell. This defense and indemnification obligation will survive these Terms of Service and your use of the Digital Candy Website.
You affirm that you are either more than 18 years of age, or an emancipated minor, 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 Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Digital Candy Website is not intended for children under 13. If you are under 13 years of age, then please do not use the Digital Candy Website without your parent’s permission — there are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.
These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by DigitalCandy without restriction.
You agree that: (i) the Digital Candy Website shall be deemed solely based in Washington, D.C.; and (ii) the Digital Candy Website shall be deemed a passive website that does not give rise to personal jurisdiction over Digital Candy, either specific or general, in jurisdictions other than Washington, D.C.. These Terms of Service shall be governed by the internal substantive laws of Washington, D.C., without respect to its conflict of laws principles. Any claim or dispute between you and Digital Candy that arises in whole or in part from the Digital Candy Website shall be decided exclusively by a court of competent jurisdiction located in Washington, D.C.. These Terms of Service, together with the Privacy Notice at http://www.DigitalCandy.com/t/privacy and any other legal notices published by Digital Candy on the Website, shall constitute the entire agreement between you and Digital Candy concerning the Digital Candy Website. If any provision of these Terms of Service 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 Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and Digital Candy failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. Digital Candy reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the Digital Candy Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND DIGITAL CANDY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE DIGITAL CANDY WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. YOU AGREE THAT IF A COURT OF COMPETENT JURISDICTION WISHES TO AWARD DAMAGES AGAINST DIGITALCANDY THAT APPROPRIATE AND REASONABLE LIQUIDATED DAMAGES, IN LIEU OF SUCH AN AWARD IS $500 INCLUDING ALL SUCH DAMAGES, COSTS, ATTORNEY’S FEES AND ANY OTHER MONETARY AMOUNT.
12. Third party claims: Please see CONTACT DIGITALCANDY for non-legal issues. If there are legal issues please use at least two of the methods listed therein in order to insure receipt.
Copyright Agent may be used as pertaining to DMCA notifications and other legal complaints:
Greenberg & Lieberman, LLC
1775 Eye St. NW Suite 1150
Washington, D.C. 20006
Third parties that claim that any of the material on the DigitalCandy.com website is infringing their right must submit a claim of infringement which includes:
2. Digital Candy review. After we have received a proper complaint, both the submitter of the complaint and CLIENT will be sent an email with a copy of the complaint. CLIENT shall be given five (5) days to respond and provide a counter notification.
3. Counter Notifications. The administrator or the provider of affected content may make a counter notification pursuant to §§512(g)(2) and (3) of the DMCA. When we receive a counter notification, we may reinstate the material in question.
To file a counter notification with us, you must provide a written communication (by fax or regular mail -- not by email, except by prior agreement) that sets forth the items specified below. Please note that you will be liable for damages (including costs and attorneys' fees) if you materially misrepresent that material is not infringing the copyrights of others. Accordingly, we suggest that you first contact an attorney. To expedite our ability to process your counter notification, please use the following format (including section numbers):
1. Identify the material that we have removed or to which we have disabled access.
2. Provide your name, address, telephone number, email address, and a statement that you consent to the jurisdiction of Washington, D.C., and that you will accept service of process from the person (or their agent) who provided notification under subsection (c)(1)(C).
3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled and will no longer be shown."
4. Sign the document and send it to us at the above address as well as via email or fax.
We strive to review all claims within ten (10) business days of when the complaint was received. Review will be undertaken by an appropriate member of our staff trained in intellectual property matters. We will issue our decision to both you and the Client. In all likelihood we will pull down the alleged offending work if there is a reasonable basis for Complainant’s basis to be true if only to preserve our DMCA safe harbor rights.
3. Digital Candy decision. You, the Client, agree that if the decision is made to remove the Digital Candy from our Site that you will not hold us liable for pulling the material down under any circumstances. You also understand that we will be required to provide your information to the Complainant.
We will, in appropriate circumstances, terminate repeat infringers. If you believe that a user of our Site is a repeat infringer, please follow the instructions above to contact us and provide information sufficient for us to verify that the user is a repeat infringer. If we have documented three (3) infringements then the user will not be allowed to upload further images to the site.