Distrify Terms of Use

Effective Date: 08 November 2011

Customer Terms and Conditions of Use

Welcome to Distrify! We are delighted you have chosen to use Distrify and hope you enjoy the Distrify experience. We would love to hear your thoughts on our services, so please feel free to contact us at the 'consumer comments' email address below with your comments (please pay particular attention to clause 4.c), below before sending us your comments). In order to make the Distrify Service safe, enjoyable and efficient, we have some rules which cover your use of the Distrify Service (use of the Distrify toolset including video player), and detail the conditions under which you access films and other merchandise (collectively 'Content') and make use of this Website. You must read these terms and conditions before proceeding to use the Service, create a user account or access the website further, and cease use and/or access immediately if you do not agree to be legally bound by the following provisions. Some parts of the Service my require your agreement to further terms and conditions specific to that part of the Service. You will be notified of such terms and conditions as appropriate and should only continue use if you agree to be bound by those terms and conditions. You also agree to accept and be bound by our Privacy Policy which is available here, and our Copyright Policy, available here.

1. Your rights and obligations as a customer

When you purchase Content for download or streaming through the service, the Content Provider grants you a personal, non-transferable, licence to use the Content for your own personal, private use. You may not use the Content or any part of it for any commercial purpose or any other purpose not expressly authorised in this agreement.
You may not copy, upload, modify, manipulate, reverse-engineer, publish, burn to CD or DVD, display publicly or in any way transmit whether online or otherwise, the Content or any part of it. You may not transmit the Content or any part of it to any other computer, website, server or other device by any means without the express permission of Distrify or the Content Provider. You may not use software robots, crawlers, spiders or similar data gathering and extraction tools in respect of the Distrify website or Service and you agree to indemnify Distrify for any losses it suffers, including reasonable legal fees, as a result of your use of such programmes, including for any legal or other action taken to prevent your use of such programmes.
For the avoidance of doubt, you may, subject to the provisions of 1.d), below, introduce Content to your friends by posting a link to the film or to any Content on Social Media platforms.
With reference to 1.c), above, you may, where the Distrify Widget (video player) gives the option, embed the Widget on websites or other locations and/or share Content by posting links to the Content through the mechanism provided by the Widget. You may not embed or share the Widget or Content on or with websites or other locations which contain material which is obscene, defamatory, offensive, discriminatory and/or unlawful or which gives rises to criminal and/or civil liability (collectively, 'unacceptable content'). Distrify reserves the right to block and/or take any action it considers appropriate to remove content embedded on locations which contain material it considers, in its sole discretion, to be in breach of these terms and conditions, inappropriate, liable to cause harm to the reputation of Distrify and or generally in the best interests of Distrify.
Use of the Service is restricted to persons over the age of 18. By using the Service you warrant that you are 18 years or older. If you are under 18, your parent or guardian may agree to access the Service on your behalf, provided you meet any age criterion under clause 2.d), below.
All text and other content on this website and comprising the Distrify Service and the 'look and feel' of same including, but not limited to, trademarks, logos, images, text, graphics, sounds, music, computer code, interfaces and design are owned by Distrify and/or Content Providers and may not be copied, reproduced or otherwise used other than with Distrify's prior written consent.
You will not use the Service for any unlawful or unauthorised purpose.
You will not copy, alter, decompile, reverse engineer, create a derivative work of, or otherwise attempt to extract or modify the source code of the Service or any part thereof.
Your access to this Website and the Service is not guaranteed. Any Content may be withdrawn at the sole discretion of Distrify. Your access to the Service and/or Website may be suspended or permanently blocked without notice should Distrify believe, in its sole discretion, that you are in breach of these terms and conditions.
Distrify accepts no liability for any losses suffered by you or any third party for its decision to withdraw and/or block your access to the Service or this Website.
You acknowledge that if you breach either the Content Provider's and/or Distrify's property rights you may be liable for civil and/or criminal proceedings and you agree to fully indemnify Distrify, Content Provider and/or any third party from all losses resulting from your breach of these terms and conditions. Such losses shall include all reasonable legal costs incurred as a result of any action taken against you as a result of your breach of these terms and conditions.

2. Purchasing Content

In making a purchase through the Service or using this website, you agree to be legally bound by the terms set forth in these terms and conditions.
You consent to, and agree to abide by, the terms and conditions of use of the provider of your chosen payment method. It is your responsibility to familiarise yourself with such third party terms and conditions, and Distrify accepts no liability for any losses you may incur as a result of any breach of such terms and conditions either by yourself or by the provider of the payment method.
In order to purchase content, you will be required to open a user account. You may only do so if you are 18 years old or older. The details you provide must be accurate and you must keep them up to date. You will be issued with login details comprising a user name and password. It is your responsibility to keep these details safe and to prevent others from accessing your account, and you shall be responsible for the conduct of your account and all activities performed through it. You may not divulge your login details to any party nor transfer your account to another party without the written consent of Distrify. If you create an account, access this site and/or use the service on someone else's behalf, you warrant that you have that person's authority to do so, and that you accept all liability and the consequences for any breaches of these terms and conditions resulting from any activity you conduct which is not so authorised. Distrify reserves the right to terminate any user account without warning where it believes, in its sole discretion, that these terms and conditions have been breached, or generally where it considers it in Distrify's interest to do so.
Some Content may be sold on an age restricted basis. It may be unlawful for you to knowingly purchase Content if you don't meet the minimum age criterion. In purchasing such Content, you warrant that you are old enough to purchase the Content legally. Distrify accepts no liability for any losses resulting from your breach of this condition. Should Distrify suspect that a Customer intends to, or has purchased, Content but does fulfil the minimum age criterion, Distrify reserves the right to cancel the transaction without refund.
Distrify reserves the right to pursue you through the courts for any sums you owe to Distrify. You agree that, in such circumstances, you will be liable for all costs and expenses incurred by Distrify including, but not limited to, legal fees, collection fees, arbitration costs and court costs.

3. Limitation of Liability and Refunds

Your use of the Service and/or access this Website is at your own risk.
Distrify makes no warranties as to quality or fitness for purpose of Content, and cannot guarantee that the Service will be uninterrupted and/or error free, and Distrify cannot guarantee the adequacy of any third party infrastructure (e.g. your internet connection). However, any Customer problems or complaints will be taken seriously, and Distrify will remedy complaints insofar as is reasonably practical and economic. Refunds will be given where Distrify determines, in its sole discretion, that any loss of user experience has been caused by a fault of Distrify. Refunds for other reasons are given at Distrify's sole discretion. In the event of any customer issues or complaints please email us at [email protected] and we promise to respond within 24 hours.
Whilst Distrify endeavours to ensure all information referring to products, services, Content and other materials provided through its website and Service is accurate, Distrify cannot warrant that such information will not contain inaccuracies.
Distrify hereby excludes and limits all liability, in so far as is legally permissible, for any losses, both tangible and intangible, you or any third party should incur as a direct or indirect result of your use of the Service or Website or in respect of any act or omission on the part of Distrify. Distrify will not be liable to the Customer for any lost profits, or costs of procurement of substitute goods or services, or for any direct or indirect, special, incidental, or consequential damages, including, without limitation, damages for lost data, damages to software or firmware, damages to hardware (collectively “Losses”), however caused and under any theory of liability, including but not limited to contract, products liability, strict liability, and negligence, and whether or not either party to this agreement was or should have been aware of, or was advised of, the possibility of such damages. In no event will Distrify’s total and aggregate liability to you, the Customer, exceed the amount actually paid by you to Distrify for the content which forms the basis of the claim. Distrify hereby excludes all liability, in so far as is legally permissible, for any trauma, shock, discomfort, offence or other negative sensation you or any third party should endure as a result of use of the Service or Website. It is your responsibility to research whether Content is suitable for you and anyone who should view or otherwise consume it as a result of your use of the Service.
You will hold Distrify harmless from, and indemnify Distrify against, all “Losses” liabilities and costs (including reasonable legal fees) resulting from your breach of these terms and conditions and in respect of any action which should be taken by, or against, Distrify as a result.

4. Miscellaneous

These terms and conditions may be amended from time to time. The terms and conditions which apply to your transaction are those in place on this Website at the time your transaction was finalised. Distrify can only notify users of the website and Service of amendments to the terms and conditions electronically by notice on the Distrify website. Your continued use of the website and/or Service following amendment to the terms and conditions shall constitute your acceptance of the new terms and conditions in their entirety. The new terms and conditions will take effect immediately unless otherwise advised in the notification.
Nothing within these terms and conditions shall be deemed to create a partnership, joint venture, relationship of agency or any further form of legal co-operation between you and Distrify. Any failure of Distrify to enforce any provision within these terms and conditions shall not be construed as waiver of that provision and Distrify reserves the right to enforce any previously unenforced provision at a later date.
For the convenience of our Customers, this Website may contain links to other third party websites. Distrify does not always vet the suitability of such websites, and Customers use such links at their own risk. Distrify accepts no liability for any losses or distress, of any nature whatsoever, as a result of your use of such links. Distrify will consider carefully any complaints regarding links to third party sites. You may create a hyperlink to the Distrify website provided the site upon which the link appears conforms to the acceptable content standards detailed in 1.d), above. Distrify reserves the right to request that you remove the link, and you shall do so immediately upon receiving such a request. You shall cease all linking activity until advised by Distrify in writing that you may resume such activity.
Any unsolicited communications including but not limited to comments, recommendations, ideas and/or opinions, received by Distrify from customers and/or other users of this website and/or the Distrify Service shall be considered the exclusive property of Distrify to exploit or otherwise use in any way Distrify, in its sole discretion, should see fit. In sending unsolicited communications you warrant that you own all rights to the content of the communications and you assign all such rights to Distrify. For the avoidance of doubt, the communications referred to in this clause shall include all communications submitted to Distrify's 'consumer comments' email address.
These terms and conditions shall be construed in accordance with the laws of Scotland and shall be interpreted as a binding contract between you and Distrify executed in the jurisdiction of Scotland. Any action raised in respect of a breach of these terms and conditions (whether by the Customer, Distrify, the Content Provider or any Third Party), shall fall under the exclusive jurisdiction of the courts of Scotland and Scots Law shall apply to any such action. Where we have a suspicion that you intend to, or have, breached the proprietary rights of Distrify, a Content Provider, or an associated third party. Distrify reserves the right to seek relief by interim interdict, injunction or similar legal mechanism in any appropriate jurisdiction.
Should a dispute arise between you and Distrify relating to your visit to this site and/or use of the Service, we shall endeavour to resolve the dispute promptly and in good faith. In the event that an agreement cannot be reached, the claim shall be submitted to binding arbitration in Scotland and the arbiter's decision shall be final. For the avoidance of doubt, Distrify shall take a very strict approach should you violate the rights of a Content Provider and shall not hesitate to report any criminal activity to the relevant authorities.
You shall notify Distrify of any claim you may have under this agreement in writing within one year of the breach in respect of which your claim arises. Distrify will not entertain any claims after this time. You shall raise any action in respect of any claim you may have against Distrify within one year from the moment of breach giving rise to the claim or lose your right to bring the action forever, notwithstanding any conflicting laws.
Should any part of these terms and conditions be held invalid, that part shall cease to apply, and all remaining provisions shall remain in force.

Content Provider Terms and Conditions of Use

Welcome to Distrify! We are delighted you have chosen to use Distrify and hope you find Distrify to be a lucrative source of self-distribution for your film. In order to make the Distrify Service safe, enjoyable and efficient, we have some rules which cover your use of the Distrify Service (use of the Distrify Toolset including video player) and your use of this website. The terms and conditions apply to you if you are, or intend to become, a Content Provider, i.e. intend to use the Distrify Toolset to distribute your film, other digital content and/or merchandise (collectively, 'Content') using the Distrify Service. You must read these terms and conditions before proceeding to use the Service, create a user account or access the Website further, and cease use and/or access immediately if you do not agree to be legally bound by the following provisions. Some parts of the Service my require your agreement to further terms and conditions specific to that part of the Service. You will be notified of such terms and conditions as appropriate and should only continue use if you agree to be bound by those terms and conditions. You also agree to accept and be bound by our Privacy Policy which is available here and our Copyright Policy, available here.

1. Intellectual Property

By making Content available through the Service, you, the Content Provider, represent and warrant that

you hold all rights and licenses necessary for the purposes of commercially exploiting the Content through the Service and are not prevented from doing so by any existing contractual relationships;
the Content does not violate or otherwise infringe any trademark, copyright or other proprietary right of any third party;
you shall indemnify Distrify against any losses, including reasonable legal fees, in the event of legal action against Distrify by a third party in respect of any purported violation or infringement of any third party right contemplated in 1.a) and/or 1.b), above;
you have the permission of each identifiable third party depicted in the Content to use their name and/or likeness for the purposes contemplated in 1.a) above;
you have the authority to grant all such rights specified in this section to Distrify, its successors and assigns;
in concluding this agreement, you hereby grant all rights contemplated in 1.a) to 1.e), above, to Distrify, its successors and assigns on a worldwide (subject to the provisions of 1.g), below), non-exclusive, royalty free, sub-licensable and transferable basis for the purposes of exploiting and promoting the Content through the Service and exploiting and promoting the Content, Service and Distrify through all media;
It is your responsibility to inform Distrify of any territories in which you do not hold sufficient rights for Content exploitation through the Service. Distrify will block availability of Content in these territories (referred to as 'Geoblocking');
You grant to each current and future Customer of the Service a worldwide (subject to the provisions of 1.g), above), non-exclusive license to access, stream, download, share, post, link and otherwise make use of the Content as permitted through the Customer terms and conditions of the Service;
You authorise Distrify, its successors and assigns, on a worldwide, non-exclusive, royalty free, sub-licensable and transferable basis, the right to use your company name, logos, trademarks and likenesses for the purposes of exploiting and promoting the Content through the Service and exploiting and promoting the Content, Service and Distrify through all media;
Distrify grants the Content Provider a revocable licence to use its (Distrify's) logos and likenesses solely for the purposes of promoting the Service and the Content;
Subject to j) above, all trademarks, designs including the general 'look and feel' of the website and Service, logos, images, text, graphics, music, computer code, interfaces, design and content on Distrify's website and in use as the Service are owned by Distrify and may not be copied, reproduced or otherwise used other than with Distrify's prior written consent;
Distrify operates a 'fair use' policy and reserves the right to remove from the Service any film which Distrify considers, in its sole discretion, generates many trailer views but few sales. It costs us money to host and stream your trailers, so it’s up to you to market your film well and generate sales. Content Providers on a paid plan will be contacted about sales performance prior to Content removal.

2. Conditions of Use

In accessing the website and/or using the Service, you hereby warrant that

you will not use the Service to make available to anyone, for any purpose, any Content which is in any way unlawful, libellous, defamatory, discriminatory or liable to give cause for any criminal or civil action against Distrify, the Content Provider or any third party;
you will only use the Service for purposes of exploitation of the Content as contemplated within this agreement;
any Content you upload, any promotional materials you use and any activities you undertake which are in any way connected with the Service and/or Distrify comply with all applicable laws including laws local to all jurisdictions in which such Content, materials or actions may be respectively consumed, used and/or conducted;
in using the Service, you will not misrepresent the Content to Customers or anyone else;
you will not use the Service for the purposes of advertising or promoting anything other than the Content or the Service without the express written consent of Distrify;
the Content you upload and any other actions you take will not damage or interfere with the operation of the Service or Customers' property in any way, and you will not use the service to transmit viruses and/or worms;
you will use the Service only as contemplated within this agreement for the normal exploitation of Content and not for any other purpose. You will not copy, alter, decompile, reverse engineer, create a derivative work of, or otherwise attempt to extract or modify the source code of the Service or any part thereof, nor will you harvest or attempt to harvest any data under the control of Distrify nor subject the Service or Distrify's website to spiders, crawlers, software robots or any data mining software of any description;
You will not embed or share the Distrify Widget (player) on any website or other platform which hosts obscene, libellous, defamatory or illegal content and/or content liable to open Distrify, its assigns and/or successors to legal action or to bring Distrify and/or the Service into disrepute.
Distrify reserves the right to remove from the Service, without written notice to the Content Provider, any Content which it reasonably believes, in its sole discretion, to be potentially damaging, in any physical or abstract sense, to the Service and/or Distrify.
All login details issued to you by Distrify are non-transferable and you shall keep secure any login details to Distrify's websites, the Service or other facilities and shall indemnify Distrify against any losses suffered as a result of unauthorised access resulting from your failure to keep such details secure.

3. Limitation of Liability

Distrify shall endeavour to provide a continual, uninterrupted Service. However, technological and other issues may from time to time cause some disruption to the Service. Distrify accepts no liability for any losses, whether contemplated or otherwise, suffered by the Content Provider due to disruption of the Service, howsoever caused. Distrify will endeavour to remedy any problems with the Service which are brought to its attention in a timely manner; however, no guarantee as to the success or timeliness of such action can be given.
The Service is provided 'as is' and Distrify makes no guarantee that the Service will meet the expectations of the Content Provider. However, Distrify may, at its discretion modify the Service for the benefit of the Content Provider. Where this is done at the request of the Content Provider, an additional charge may be levied by Distrify on the Content Provider. No such charge will be levied without the Content Provider's prior written agreement.
Distrify accepts no liability for any losses (of whatever nature) incurred by the Content Provider or any third parties howsoever incurred. Distrify's liability to the Content Provider and third parties for losses suffered due to the negligence or other act or omission of Distrify or any other party is limited to the maximum extent permissible by law..
You shall indemnify Distrify against and hold Distrify harmless from any and all losses, liabilities and costs, including all reasonable legal fees, incurred by Distrify as a result of your breach of these terms and conditions. This includes all legal fees incurred by Distrify due to any action it takes against you in respect of your breach of these terms and conditions and/or any action taken by a third party against Distrify in respect of any Content, act and/or omission by you. Distrify reserves the right to take exclusive defence and control of and, in its sole discretion, settle, any claims against it in respect of such actions and shall be fully indemnified by you should it choose to do so.

4. Changes and Amendments to these terms and conditions

These terms and conditions constitute the entirety of the agreement between you and Distrify. Distrify may, from time to time, amend these terms and conditions. An up to date copy of these terms and conditions is posted on Distrify's website. As a Content Provider, it is your responsibility to be aware of the terms and conditions in force. Notification of any changes shall be through the terms and conditions page on Distrify's website and the date upon which revised versions shall come into effect shall be detailed on the revised terms and conditions page.
Any changes relating to pricing will be notified to your named representative by email to the address provided by you to Distrify for this purpose.
Your continued use of the Service after a period of 30 (thirty) days has expired after amendment to the terms and conditions shall constitute your acceptance of the amended terms and conditions.

5. Charges and payment

The Content Provider is responsible for setting the price at which the Content will be marketed to Customers, subject to a minimum price of $2.99 for feature films (40 minutes or over in length) and $0.99 for short films (under 40 minutes in length).
The Content Provider shall take a 70% share and Distrify shall take a 30% share of net revenue in respect of each sale of Content. Net revenue shall be defined as the full price paid by the Customer as set and advertised by the Content Provider less any applicable transaction taxes and payments including, but not limited to VAT, credit card facilitation fees and/or mobile phone carrier charges (in the case of payment by mobile phone).
Distrify shall endeavour to remit the Content Provider's share to the Content Provider electronically by bank transfer to the Content Provider's specified bank account (or by other arrangement as agreed between the parties in writing) within one calendar month of the end of the month in which the sale of Content took place. The payment shall be accompanied by a report detailing the purchases in respect of which the remittance is transferred.
In the event that you should dispute the value of remittance or detail of the report, you shall advise Distrify in writing within thirty (30) days of receipt. No disputes will be entertained after this time. Distrify warrants to investigate within sixty (60) days and to seek, in good faith, to resolve the issue.
The Content Provider may inspect the accounts of Distrify at Distrify's offices, up to twice in any one calendar year, upon thirty (30) days prior notice and at the Content Provider's own expense.
Payment terms may be modified in line with the modification policy at 4.a) above.
You warrant that all of your Content is in compliance with PayPal Acceptable Use Policy.

6. Termination of this Agreement and Jurisdiction

These terms and conditions shall be construed in accordance with the law of Scotland and acceptance of these terms by the Content Provider shall be considered to establish a contractual agreement executed in the jurisdiction of Scotland. You agree that, subject to the provisions of 6.e), the courts of Scotland shall have absolute jurisdiction over all disputes arising out of these terms and conditions.
You may terminate this agreement by removing all your Content from the Service and advising Distrify in writing of your intention to withdraw from this agreement.
Distrify reserves the right to terminate this agreement without notice where it has reason to believe the Content Provider is in breach of any part of this agreement, or where it feels, in its absolute discretion, that terminating this agreement is in Distrify's best interests. Distrify shall not be liable to the Content Provider or any third party for any losses resulting from such termination.
Where any dispute as to this agreement arises, Distrify and the Content Provider both agree to enter into good faith negotiations in an attempt to resolve the dispute. Should the Content Provider consider Distrify to be in breach of these terms and conditions, the Content Provider shall notify Distrify in writing detailing the nature of the breach. Should Distrify fail to remedy the breach within 10 working days of receipt of said notification, the matter shall be submitted to binding, independent arbitration in the jurisdiction of Scotland, and the judgment of the Arbiter shall be considered final.
Notwithstanding the provisions of 6.a), above, should you fail to comply with Distrify's written requests to comply with this agreement, Distrify reserves the right to seek a remedy against you including, but not limited to, interim interdict, injunction or any other similar legal mechanism, in any appropriate jurisdiction, in order to protect the proprietary rights of Distrify or any third party.
The Content Provider agrees that it shall raise any action within one year of the origin of the cause of action, or lose the right to bring an action forever.
Where a dispute arises concerning delivery of Content to a Customer, Distrify reserves the right to adjudicate over the dispute and the Content Provider agrees to honour Distrify's decision. Remedies open to Distrify shall include, but not be limited to, providing refunds, requiring the Content Provider to re-send any non-digital Content and/or making digital Content available to the Customer for free or for a reduced charge. The Content Provider authorises Distrify to deduct any costs incurred in resolving such a dispute from any payments to the Content Provider in respect of its use of the Service or from the Content Provider's PayPal or similar account.

7. Miscellaneous

Other than by explicit statement, no part of this agreement shall be deemed to confer any rights on any third parties.
Distrify grants no rights to the Content Provider beyond the minimum required for the effective exploitation of this agreement.
The current version of this agreement, together with any individually negotiated Schedule, signed by both parties, constitutes the entirety of the agreement between the Distrify and the Content Provider. Further terms and conditions may apply to additional services: these shall be the subject of a separate agreement.
The Content Provider agrees to abide by and honour Distrify's Customer Terms and Conditions, Privacy Policy and Copyright Policy as amended from time to time, available on Distrify's website, in so far as it is explicitly required to do so.
Distrify website and/or the Service may link to third party websites to provide enhanced Customer experience. Such sites are not under the control of Distrify and use of the sites is at the discretion and risk of the individual user.
If any part of this agreement should be held unenforceable, that part shall be removed from the agreement and the remainder of the agreement shall remain in force.