Terms of Use

Welcome to Mobcaster.com, a web site and online service of Mobcaster, Inc. (“Mobcaster,” “Company,” “we,” or “us”) In order for you to use our service to find, fund, and broadcast independent television content (the “Service”), you must agree to these terms of use (“Terms of Use”). These Terms of Use set forth the legally binding terms and conditions for your use of the web sites at www.Mobcaster.com and www.MobcasterTV.com (the “Site”) and the Service owned and operated by Company. The term “Site” also includes all products, applications, features, functionality and services offered by Mobcaster on the Site, including, without limitation, viral features and related technology (e.g., embeddable media players, etc.). The term “you” includes all Users, Members (as both terms are defined below) and visitors to the Site.

1. Acceptance of Terms
By using the Site or Service in any manner, including but not limited to visiting or browsing the Site, you agree to be bound by these Terms of Use. If you do not accept all of these Terms of Use, then please do not use or register to use the Site. Mobcaster recommends that you print out a copy of these Terms of Use for your future reference (however, see Supplement or Modification of Terms of Use, below).

2. Supplement or Modification of Terms of Use
From time to time, Mobcaster may supplement these Terms of Use with additional terms that pertain to the Service or otherwise, such as new or expanded services, products and features. You understand and agree that such additional terms are hereby incorporated by reference into these Terms of Use. Mobcaster may also modify these Terms of Use from time to time. When Mobcaster posts modifications to these Terms of Use, Mobcaster will revise the “Effective Date” at the end of these Terms of Use. The modified Terms of Use will be effective immediately upon posting. Your continued use of the Site after the posting of the modified Terms of Use constitutes your agreement to abide and be bound by them, as modified. If you object to any modification, your sole recourse is to terminate your use of the Site and the Service. Mobcaster recommends that you check the Site from time to time to inform yourself of any changes in these Terms of Use or any of Mobcaster’s other policies.

3. Registration
All visitors to the Site, whether registered or not, are “Users.” If you register with Mobcaster you become a “Member” and gain access to certain features, including the ability to post certain information about your creative project (“Show”) on the Service and interact with other Members about your Show.

You do not have to register in order to visit the Site. To access certain features of the Service, though, including posting, commenting on, following, contributing to or to seek funding for a Show you will need to register with Mobcaster and create a Member account. Your registration gives you access to the services and functionality that we may establish and maintain from time to time in our sole discretion. When creating your account, you must provide and maintain accurate, complete and updated information. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of your Mobcaster account. When you register as a Member of Mobcaster, you will be asked to use a valid email address and to select a password. Any information you provide to us as part of the registration process will be subject to our Privacy Policy which is available here.

You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Mobcaster immediately of any breach of security or unauthorized use of your account. Although Mobcaster will not be liable for your losses caused by any unauthorized use of your account, you shall be liable for the losses of Mobcaster or others due to such unauthorized use. You shall never use another User’s account without such other User’s express permission. You will immediately notify Mobcaster in writing of any unauthorized use of your account, or other account related security breach of which you are aware.

You may use your settings to control your account and the information that is communicated to you about your account. By providing Mobcaster your email address you consent to our using the email address to send you service-related notices, including any notices required by law, in lieu of communication by postal mail.

4. Eligibility
Each Member represents and warrants that you are of legal age to form a binding contract, and that all registration information you submit is accurate and truthful. Company may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.

Users who are children and young people older than 13 are entitled to access this Site to view its content. However, certain parts of the Site (e.g., those containing adult language and/or content) may be unsuitable for younger viewers. Mobcaster offers user-managed content ratings, but we do not independently vet or verify these ratings and therefore we cannot and do not guarantee the accuracy of these content ratings. Mobcaster does not knowingly market to, solicit information, accept service or collect information from children under the age of 13. If the Company becomes aware that it inadvertently received personal information from a visitor under the age of 13 on the Site, we will delete the information from our records.

5. Rules and Conduct.  
As a condition of use, you promise not to use the Service for any purpose that is prohibited by these Terms of Use. For purposes of these Terms of Use, the term “Content” includes, without limitation, any User Submissions (as defined below), moving visual content in any form including, film, video tape, digital files, animation and clips, audio clips, written forum comments, information, data, text, photographs, software, scripts, graphics, and interactive features and any other work protected by copyright, in all cases, generated by any means and in any format or medium, including any modifications thereof made accessible on or through the Service.

You agree that when using the Site, you will act in a manner consistent with the goals of the Site, and by way of example, and not as a limitation, you specifically agree that You will not:

  • violate any applicable local, state, national or international law, including but not limited to any rule, regulation, decree or ordinance;
  • infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or;
  • post information on or download information from the Site unless you have all rights and authority necessary to do so;
  • post any inappropriate, defamatory, vulgar, obscene, sexually explicit, potentially libelous or slanderous, infringing, harmful, harassing, threatening, exploitative of minors, illegal, false, misleading, untruthful or inaccurate or other Content or information that Mobcaster in its sole discretion views as objectionable to the Site, including but not limited to text, graphics, audio and video files.;
  • post any Content that constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spam”);
  • interfere with, modify or bypass Mobcaster’s use of advertisements or ad serving systems;
  • involve commercial activities and/or sales such as contests, sweepstakes, barter, advertising, or pyramid schemes without Mobcaster’s prior written consent;
  • post files that contain viruses, corrupted files or other similar software, programs or routines that may damage the operation of another’s computer or the Site or obtain unauthorized access to any system, data, password or other information of Mobcaster or any third party;
  • interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service;
  • use a username (or e-mail address) that: is already being used by someone else; belongs to another person; or may or does impersonate another person or entity, including any employee or representative of Mobcaster or any Member;
  • impose (as determined by Mobcaster in its sole discretion) an unreasonable or disproportionately large load on Mobcaster’s (or its third party providers’) infrastructure;
  • bypass any measures Mobcaster may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service);
  • collect or harvest any personally identifiable information, including account information, from the Service or uses the communication systems provided by the Service for any commercial solicitation purposes;
  • launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the Mobcaster servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; or
  • post third party surveys or contests, chain letters, pyramid schemes, unnecessarily long messages, unnecessary or repetitive posts, multiple ratings for the same item, meaningless text, spamming, offensive declarations or other similarly disruptive content

Use of the Site in any such prohibited manner may result in Mobcaster permanently terminating your access to the Site and/or Service as stated in Section 13 (Termination).

You are solely responsible for the Content that you upload, publish, display, link to or otherwise make available on the Service. You must be the owner of all the Intellectual Property Rights (as defined below) in the Content you post, or have explicit permission from the owner(s) of all such rights to post the Content on the Service.

For the purposes of these Terms of Use, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

Mobcaster does not guarantee that any Content will be made available on the Site or through the Service. Mobcaster has no obligation to monitor the Site, Service, or Content. However, Mobcaster reserves the right to remove, edit or modify any Content in its sole discretion, from the Site or Service at any time, without notice to you and for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Mobcaster is concerned that you may have violated the Terms of Use), or for no reason at all.

We may allow Users to post feedback, comments, questions, and other information on certain areas of the Service. Any such postings, together with any Shows, constitute “User Submissions.” Mobcaster takes no responsibility and assumes no liability for any User Submissions that you or any other Users or third parties post on the Service. You understand and agree that any loss or damage of any kind that occurs as a result of the use of any User Submissions that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Service, is solely your responsibility. Mobcaster is not responsible for any public display or misuse of your User Submissions. You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users.

Excepting any limitations imposed by applicable law, Users shall not, by either direct or indirect means, (i) decompile, decipher, reverse engineer, disassemble, or otherwise attempt to derive any source code, algorithms or underlying ideas; (ii) create derivative works of any part of the Service, such as through modification or translation, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights received hereunder. Users shall abide by all applicable local, state, national and international laws and regulations.

Mobcaster does not endorse any User Submissions or any opinions, recommendations or advice expressed in Content on the Site. Mobcaster expressly disclaims any and all liability in connection therewith. Mobcaster has no obligation to and may not monitor the Site, Service, Content, or User Submissions. In no event, will Mobcaster be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any Content. Consequently, Mobcaster does not guarantee the quality, accuracy or integrity of the Content posted. Since standards may vary by community and individuals sometimes choose not to comply with our policies and practices, you may be exposed to Content that you find offensive or objectionable. In the event that we choose not to remove Content you find objectionable, you have the right to refrain from using any part of the Site with which you are uncomfortable. If you are exposed to such Content, please contact Mobcaster at support@Mobcaster.com so that we may investigate and take any action that we believe is appropriate, including, but not limited to issuing warnings, removing the Content, terminating memberships or determining that no action need be taken.

6. License

A. Intellectual Property Rights — Showrunners

Mobcaster primarily provides the Site and Service to enable Users who create Shows (“Showrunners”) to upload their Shows and have such Shows viewed by a global audience. Mobcaster can only provide the Service and permit Showrunners to upload their Shows while preserving their Intellectual Property Rights in and to such Shows and related Content if Showrunners grant Mobcaster the license below (the “Show License”). Uploading Shows and/or Content onto the Site shall constitute your acknowledgement of and agreement with both the Show License and all terms contained in these Terms of Use:

(i) By submitting any Content including but not limited to Shows, through the Site or the Service (“Show Submissions”), you hereby do and shall grant Mobcaster and those acting on behalf of Mobcaster a worldwide, non-exclusive, irrevocable, perpetual, royalty-free, fully paid, sub-licensable and transferable license to use, modify, edit, distribute, reproduce, prepare derivative works of, display, perform, distribute, market, sell and otherwise fully exploit the Show Submissions in connection with the Site, the Service and Mobcaster’s (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third party websites);
(ii) You also hereby do and shall grant each User of the Site and/or the Service a non-exclusive license to access your Show Submissions through the Site and the Service, and to use, reproduce, distribute, edit, modify, prepare derivative works of, display and perform such Show Submissions solely for personal, non-commercial use;
(iii) In addition, you hereby grant Mobcaster, and to allow Mobcaster’s authorized designees to, use and publish, your name(s), trademarks, likenesses, and personal and biographical materials as well as the name(s), trademarks, likenesses, and personal and biographical materials of any and all of the Show Designees (as defined below), in connection with the provision of the Service;
(iv) You agree to pay all royalties and other amounts owed to any person or entity due to, or in association with, your Show Submission to the Site or Service as contemplated by these Terms of Use;
(v) You agree that Mobcaster’s and Users’ use or other exploitation of your Show Submissions, including but not limited to your Shows, as contemplated by these Terms of Use will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other Intellectual Property Rights; and
(vi) For the the avoidance of doubt, the foregoing Show License granted to Mobcaster does not affect your other ownership or license rights in your Show Submission(s), including the right to grant additional licenses to the material in your Show Submission(s), unless otherwise agreed in writing. Notwithstanding the foregoing, prior to receiving funding for a First Season (as defined below) of your Show, you must enter into a separately negotiated Producer Agreement (as defined below) with Mobcaster providing Mobcaster with certain rights in the event that (A) any First Season of your Show is picked up and/or funded by a third party network or distributor or (B) you grant other licenses in connection with your Show.

B. Intellectual Property Rights — Users

Mobcaster further provides Users with the ability to add, create, upload, submit, distribute, collect, or post User Submissions or other information to the Site.

1. By submitting User Submissions on the Site or otherwise through the Service, you:

(i) Acknowledge and agree that you may be identified publicly by your User ID in association with any published User Submission;

(ii) Understand and acknowledge that submitting any User Submission to the Site shall constitute the publication of such User Submissions

(iii) Agree that the act of submitting any User Submissions through the Site or the Service shall grant Mobcaster a non-exclusive, royalty-free, fully paid, perpetual, worldwide, irrevocable, sub-licensable and transferable license to use, modify, edit, distribute, reproduce, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with the Site, the Service and Mobcaster’s (and its successors’ and assigns’) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third party websites) now know or hereinafter developed;

(iv) Acknowledge and agree that the act of submitting any User Submissions through the Site or the Service shall simultaneously grant Users of the Site and/or the Service a non-exclusive perpetual, worldwide, irrevocable license to access your User Submissions through the Site and the Service, and to use, modify, edit, distribute, reproduce, prepare derivative works of, display and perform such User Submissions solely for personal, non-commercial use. For the avoidance of doubt, the foregoing license grant to Mobcaster does not affect your other ownership or license rights in your User Submission(s), including the right to grant additional licenses to the material in your User Submission(s), unless otherwise agreed in writing;

(v) Acknowledge and agree that Mobcaster may use and publish, and to permit others to use and publish, your name(s), trademarks, likenesses, and personal and biographical materials in connection with the provision of the Service; and

(vi) Represent and warrant, and can demonstrate to Mobcaster’s full satisfaction upon request that you (1) own or otherwise control all rights to all content in your User Submissions, or that the content in such User Submissions is in the public domain; (2) you have full authority to act on behalf of any and all owners of any right, title or interest in and to any content in your User Submissions to use such content as contemplated by these Terms of Use and to grant the license rights set forth above (3) you have the permission to use the name and likeness of each identifiable individual person and to use such individual’s identifying or personal information as contemplated by these Terms of Use; ; and (4) you are authorized to grant all of the aforementioned rights to the User Submissions to Mobcaster and all Users.

2. You agree to pay all royalties and other amounts owed to any person or entity due to or in conjunction with your submission of any User Submissions to the Service.

3. You agree that Mobcaster’s and Users’ use or other exploitation of User Submissions as contemplated by these Terms of Use will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.

4. You understand that Mobcaster shall have the right to delete, edit, modify, reformat, excerpt, or translate any User Materials or information submitted by you; and that all information publicly posted or privately transmitted through the Site is the sole responsibility of the person from which such content originated and that Mobcaster will not be liable for any errors or omissions in any content; and that Mobcaster cannot guarantee the identity of any other Users or Members with whom you may interact in the course of using the Service.

5. You also Understand and agree that Mobcaster does not endorse and has no control over any User Submission and cannot guarantee the authenticity of any information which Users or Members may provide about themselves. You acknowledge that all Content accessed by you using the Service is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.

C. Removing Content

The above licenses granted by you in Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your Content from the Service. You understand and agree, however, that Mobcaster may retain, but not display, distribute, or perform, server copies of your Content that has been removed or deleted. You must make a specific written request to Mobcaster for permanent deletion of such Content from the Mobcaster server in order for us to permanently remove such Content. Such requests must be via email, to Mobcaster customer service at the following address: support@mobcaster.com. However, we cannot guarantee that Content deleted from Mobcaster or permanently deleted from our servers will be deleted from the web sites or systems of third parties. If you would like your Content removed and/or permanently deleted from any web sites other than Mobcaster, you will be required to contact such web sites directly, and we cannot guarantee any outcome, action or result with respect to any such request by you.

7. Fees
Users do not incur any fees to become a Member. However, Mobcaster charges fees for certain services and reserves the right, in its sole discretion, to charge for any portion of the Site. Currently, Mobcaster uses PayPal to collect fees. The fees Mobcaster charges for its Service may change from time to time. Users are solely responsible for educating themselves on any and all fees leveled by the Company. To this end, Mobcaster encourages Users to check back frequently for any changes made in Mobcaster’s fee schedule. Users are solely responsible for the payment of any fees or taxes that attach to their activities and use of the Site or Service.

8. Third Party Web Sites
These Terms of Use apply only to the Site and the Service. The Site may provide links to other web sites and resources, the content and features of which may change over time. Because Mobcaster has no control over such third-party sites and resources, you acknowledge and agree that Mobcaster is not responsible for the availability of such web sites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such web sites or resources.

Separate end user license agreements or terms of use that set forth additional conditions may apply to a service or product offered via such third-party sites. Please also note that registration and certain other information about you are subject to the privacy policy posted at the web site on which you are providing your information. Please read that web site’s privacy policy for information on how your data will be handled.

YOU AGREE THAT YOUR USE OF THIRD PARTY WEB SITES AND RESOURCES, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT, INFORMATION, DATA, ADVERTISING, PRODUCTS OR OTHER MATERIALS ON OR AVAILABLE THROUGH SUCH WEB SITES AND RESOURCES, IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS APPLICABLE TO SUCH WEB SITES AND RESOURCES.

9. Personal Information and Privacy
We respect your privacy and the protection of your personally identifiable information. In the course of your use of the Site or the Service, you may be asked to provide certain personalized information to us. Our information collection and use policies with respect to the privacy of such information are set forth in the Site’s Privacy Policy which is incorporated herein by reference for all purposes. We encourage you to read the Privacy Policy which is available here, and to use it to help make informed decisions. You acknowledge and agree that you are solely responsible for the accuracy and content of information you provide.

10. Shows and Fundraising
The Service provides Members the opportunity to post Shows on the Site and to receive feedback and financial contributions from other Members. Your Show is Content and therefore is subject to all the terms and conditions relating to Content in these Terms of Use. It is a breach of these Terms of Use to post false or misleading information about your Project.

Mobcaster provides the Service to enable Members who have ideas for Shows (Showrunners) to solicit financial contributions from Users in order to enable the Showrunners to produce their Shows (“Contributions”). Users who decide to make Contributions to a Show may be referred to as “Execs.” The amount of the Contribution required to create a particular Show and the time allotted to solicit such Contribution are determined by the Showrunner. The Showrunner also determines what, if any, non-monetary rewards will be granted in consideration for Contributions (e.g. credits, location passes, premiums, etc). Members may only offer rewards that are non-monetary and lawful under all applicable laws, including without limitation state and federal securities laws, and that otherwise comply with these Terms of Use. For more information on the fundraising process, please see the Frequently Asked Questions (“FAQs”) section of the Site.

Mobcaster shall not restrict the number of Shows a Showrunner may create and for which a Showrunner may solicit Contributions. However, unless otherwise approved by Mobcaster in writing, a Showrunner may only launch a new Show at the expiration of a previous Show. A Show has reached “expiration” when a Show has either met its Funding Criteria (as defined below) or the Funding Period (as defined below) has expired.

A. Fundraising Generally – Supporting A Pilot

Initially, Showrunners may use the Service to solicit Contributions to support the creation of a television pilot episode for their Show (“Pilot”). To do so, Showrunners create a show page (“Show Page”) on the Site that contains at least the following: (i) a short video clip of no more than 3.5 minutes in length, (ii) a description of their Show, (iii) the ‘logline’, title and genre of the Show, and a still image representing the Show (collectively, the “Description”). Showrunners shall further set forth on the Show Page: (x) a fundraising goal (“Funding Goal”), (y) a time period in which funds may be raised (“Funding Period”), such Funding Period not to exceed ninety (90) days, and (z) the non-monetary reward(s) being offered in connection with funding. In addition, Showrunners may post a copy of the Show script and/or treatment and a preliminary budget. In order to be eligible to receive the proceeds of the Contribution (“Proceeds”), Showrunners must meet or exceed the Funding Goal within the Funding Period (together, the “Funding Criteria”). If the Funding Criteria are not met the applicable Proceeds are not made available to the Showrunner and funds are not drawn from the Exec’s PayPal account (see below). If the Funding Criteria are met, the Proceeds will be drawn from the Exec’s PayPal account ("PayPal") as set forth in C. Collecting Contributions below. The Showrunner shall then create the Pilot in accordance with the Description. Once the Pilot has been completed, or if a Showrunner has a preexisting Pilot that is acceptable to Mobcaster, in its sole discretion, the Showrunner may publish and perform the Pilot on the Site.

No additional Contributions may be solicited for a Show (or a concept based on a particular Show) using the Service until the Showrunner has produced a Pilot that has been published on the Site.

B. Fundraising Generally – Supporting A First Season

Once a Showrunner’s Pilot has been completed and published on the Site, the Showrunner may solicit Contributions for the creation of a first season (“First Season”) of the Show for which the Pilot was created (either by way of the Service or otherwise). As with fundraising to support the creation of a Pilot, Showrunners must establish (i) a Funding Goal; and (ii) a Funding Period. In order to be eligible to receive the Proceeds, Showrunners must meet or exceed the Funding Criteria. If the Funding Criteria is met, the Proceeds may be paid to the Showrunner. The Showrunner shall then create the First Season in accordance with the Description.

Mobcaster may, at its discretion, allow the Showrunner to solicit Contributions for the creation of a First Season with a short video clip rather than a Pilot.

Any First Season shall include a Pilot and be comprised of no more than six (6) episodes. For the avoidance of doubt, any First Season shall, at most, include a Pilot and an additional five (5) episodes.

Upon completion of the creation of the First Season, the Showrunner may publish and perform the First Season on the Site. No additional funding requests may be made for the Show (or a concept based on a particular Show) until a Showrunner has delivered the First Season episodes. Thereafter, Showrunners may seek funding for subsequent seasons using the Service.

C. Collecting Contributions

In order to receive any Proceeds, a Show must meet or surpass the Fundraising Criteria. A Show that meets or surpasses the Fundraising Criteria may be referred to as “Funded Content”. Showrunners shall designate a person or an entity to which the Proceeds should be made payable (the “Show Designee”). The Show Designee is the person or entity responsible for the project and accountable for the use of any Proceeds. A Showrunner’s consent to these Terms of Use shall also constitute agreement to the Terms of Use by the Show Designee.

Each Showrunner or Show Designee, if different, must additionally establish an account (a “Funding Account”) with PayPal at the time a Showrunner posts a Show Description. You understand and agree that your Funding Account will be governed by your agreement with PayPal, and that Mobcaster shall have no liability for your Funding Account or your transactions or interactions with PayPal.

In the event that a Showrunner reaches the Funding Criteria, whether for a Pilot, First Season, or subsequent seasons, PayPal will be authorized to disburse the Proceeds to the Show Designee’s Funding Account, pay five percent (5%) of the applicable Contribution as a funding completion fee to Mobcaster (“Mobcaster Fee”) and pay any third party or other fees incurred, including, but not limited to, a service fee to PayPal, credit card chargebacks and/or other applicable fees. The Proceeds actually disbursed to the Show Designee shall constitute Show funding (“Show Funding”). Showrunners are solely responsible for providing PayPal with accurate and current Funding Account information. Mobcaster shall not be responsible for any delay, error in, or failure to disburse funds as a result of a Showrunner’s failure to provide PayPal with the appropriate Funding Account information. Unless automated by PayPal, Show Funding will be disbursed from the Funding Account to the Show Designee’s bank account, minus any third party processing fees, according to the then current PayPal policies.

In the event that a Showrunner raises funds above the Funding Criteria level, such ‘surplus’ funds will be paid to the Show Designee after payment of the applicable Mobcaster Fee and any applicable third party or other applicable fees.

D. Mobcaster - Producer Agreement; Royalties

In the event that a Showrunner opts to use the Site and Service to fundraise for a First Season or subsequent seasons, the Showrunner shall enter into a producer attachment agreement (“Producer Agreement”) with Mobcaster. To request a copy of the Producer Agreement send an email to info@mobcaster.com. The Producer Agreement shall set forth applicable royalties pursuant to the following ‘Rate Card’:

The following royalty rates will be payable with regard to the exploitation of Funded Content:

Exploitation by Mobcaster:
Fees: 5% of all Contributions
Revenue share: 50/50 split between you and Mobcaster of Net Advertising Revenue

Exploitation by Third Parties:
Fees: 4% of the Budget of any productions shall be payable to Mobcaster
Revenue share: 15% of all "Gross Receipts" shall be payable to Mobcaster

Budget” shall mean the final approved budget of any and all subsequent TV production derived from the exploitation of Intellectual Property Rights in and to the applicable Funded Content, such as any additional episodes of a Show.

Gross Receipts” means all non-refundable sums actually received by or credited to you or a Show Designee directly or indirectly in connection with the licensing, distribution and exploitation of the Funded Content and any and all subsequent production(s) by third parties in all media now known or hereinafter existing, whether in the form of advances, royalties, license fee, shares of profit, percentages or otherwise, including without limitation any amount recovered from a third party infringer in connection with a claim, prior to any withholding or deductions, except for the deduction of any third party distribution fees and/or expenses and any taxes, duties or other amounts payable by law in connection with the distribution of the Funded Content and any Subsequent Production(s). For the avoidance of doubt, fees payable to you for services rendered in connection with the Funded Content such as writer or producer fees whether payable out of the Budget or on a deferred basis, shall be excluded from Gross Receipts as used herein.

E. Taxes and Compliance

Showrunners are solely responsible for paying any and all applicable taxes for all Show Funding paid under this Agreement and for all other taxes incurred in connection with a Show, including, without limitation, income taxes. Additionally, Showrunners are solely responsible for fully complying with any and all International and national, federal, state, or other labor and employment regulations or requirements with respect to (i) their self-employment, sole proprietorship or other form of business organization, and (ii) their employees and contractors. Showrunners shall indemnify, defend and hold Mobcaster harmless from any liability for, or assessment of, any claims or penalties with respect to withholding taxes and labor or employment requirements, including any liability for, or assessment of, withholding taxes imposed on Mobcaster by the relevant taxing authorities with respect to any Show Funding paid or other taxes incurred in connection with a Show or these Terms of Use.

Mobcaster makes no representations or guarantees regarding the number or amount of Contributions made to or Show Funding received by any Show or Showrunner, including any Show Funding payment to be made to the Showrunner or the Show Designee under this Agreement.

11. Contributing to Shows
Users, at their discretion, may contribute any amount to any Member’s Show that is posted on a Show Page that is seeking Contributions. There is no limit to the number of Shows to which Users (Execs) may contribute. Shows seeking funding through the Service must successfully reach or exceed their Funding Criteria to receive any funds. If a Funding Goal is not met within the chosen Funding Period, Users are not charged. Contributions to Shows that do reach or exceed their Funding Criteria are final and not refundable. Showrunners are not permitted to make Contributions to their own Show(s).

Execs are solely responsible for complying with any and all applicable international and national, federal and state tax laws. Execs receive no financial compensation, and the Contribution is not tax-deductible unless otherwise indicated in the Description. Execs are eligible to receive, in consideration for their Contribution, the non-monetary rewards specified by the Showrunner or Show Designee in the Description in each Show.

Users, by agreeing to the Terms of Use, agree that making a Contribution to a Show does not entitle them to any rights in or to that Show, including without limitation, any ownership, control, or distribution rights. Users further agree that the Show Designee shall be free to solicit other funding for the Show, enter into contracts for the Show, allocate rights in or to the Show, and otherwise develop the Show in its sole discretion subject to any Producer Agreement or any agreement entered into with Mobcaster as set forth in Section 6.A.(vi) or with any third party. Users acknowledge and agree that nothing in this Agreement or otherwise limits Mobcaster’s right to enter into agreements or business relationships relating to any Show.

Mobcaster does not guarantee that any Show’s Funding Criteria will be met. Non-monetary rewards offered with respect to each Show are offered at the discretion of and under the terms set by a Showrunner and/or Show Designee only. Mobcaster does not guarantee that such non-monetary rewards will be delivered and assumes no liability for any non-monetary rewards. Mobcaster does not warrant the use of any Show Funding nor does it guarantee the outcome of any Show.

Under certain circumstances, Mobcaster may, but shall have no obligation to, seek a refund of Show Funding for an Exec if the Showrunner or Show Designee misrepresents the Show or misuses the Show Funding. Users acknowledge and agree that any and all Contributions exist solely between the Exec, the Show Designee, and PayPal only. Users further agree that Mobcaster is not responsible for any Contributions or transaction associated with such Contribution, including without limitation any personal or payment information a User may provide to PayPal.

12. Advertising Revenue Share
Advertisements may be run against Shows on the Site [and on other web sites] and may be sold and served by Mobcaster or any of its advertising partners.

In the event that Mobcaster receives net advertising revenue generated by any performance on the Service, of any Content on the Site, Mobcaster will share fifty percent (50%) of such net advertising revenue with the Member who uploaded such Content. On the Service, “Net Advertising Revenue” is defined as the actual revenues received by Mobcaster after third-party commissions and revenue shares from the sale of advertisements that are viewed in specific relation to the Content, less reasonable and customary costs incurred by Mobcaster in hosting the Content, selling advertising against the Content, and serving advertising against the Content during any specified period. These costs may include advertisement-servicing fees, commissions actually paid, analytics software costs, and bandwidth costs. Mobcaster does not include its own overhead in calculating Net Advertising Revenues.

Net Advertising Revenue will be shared with applicable Members by Mobcaster on a quarterly basis, with Net Advertising Revenues remitted to Member via PayPal. Payments shall be made only to those Members who have accumulated a balance of fifty dollars ($50) or more in such Net Advertising Revenues. Participation in the Net Advertising Revenues sharing program requires that a Member have a PayPal account and a valid email address registered with Mobcaster.

Mobcaster reserves the right to report your Net Advertising Revenues share to the Internal Revenue Service or other governmental authorities, if required. In such a case, Mobcaster may authorize PayPal to reserve payment to you until appropriate reporting information (e.g. Social Security Number and address) has been provided.

Mobcaster retains the right to serve advertisements on any page within the Site, Service, or other web sites and any related products that either Mobcaster or its advertising partners sell. Any advertising revenue generated from such ‘run of site’ advertisements shall not be deemed Net Advertising Revenue hereunder. If Showrunners have relationships with other advertisers and wish to host such advertisers’ advertisements on their Show Pages, they should notify Mobcaster. However, Mobcaster retains sole discretion over posting such advertisements and may only do so if posting such advertisements is in the best interest of Mobcaster.

13. Termination
Mobcaster may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately.

If Mobcaster terminates your access, Mobcaster reserves the right to: (a) delete any or all Content provided by you or your agent(s) to the Site or the Service (b) permanently discontinue your registration with the Service; (c) notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities (including the National Center for Missing & Exploited Children) for further action; and/or (d) any other action which Mobcaster deems to be appropriate.

If your ability to access the Site and/or the Service is discontinued by Mobcaster then you agree that you shall not attempt to re-register with or access the Site and/or the Service through use of a different username or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to the Service to which your access has been terminated. If you violate the immediately preceding sentence, Mobcaster reserves the right, in its sole discretion, to immediately take any or all of the actions set forth in clauses (a) - (d) of this Section without any notice or warning to you.

A Member may delete his/her account at any time though their Member account, however in order to permanently delete all account information from our servers you must send an email from the email address registered at Mobcaster to feedback@mobcaster.com requesting to delete your account information.

All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

14. System Outages
Mobcaster periodically schedules system downtime for maintenance and other purposes. Unplanned system outages also may occur. Mobcaster has no liability whatsoever for: (a) the resulting unavailability of the Site or the Service; (b) any loss of data or transactions caused by planned or unplanned system outages; (c) the resultant delay, misdelivery or nondelivery of information caused by such system outages; or (d) any third party acts or any other outages of web host providers, Internet service providers or the Internet facilities and networks.

15. Disclaimer
YOU EXPRESSLY AGREE THAT USE OF THE SITE AND THE SERVICE IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MOBCASTER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MOBCASTER DOES NOT WARRANT THAT THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT SITE, SERVICE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. MOBCASTER DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT ON THE SITE OR THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. YOU (AND NOT MOBCASTER) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF ANY DEVICE THAT YOU USE TO ACCESS THE SITE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

16. Limitation of Liability
MOBCASTER IS A PROVIDER OF AN INTERACTIVE COMPUTER SERVICE WITHIN THE MEANING OF THE COMMUNICATIONS DECENCY ACT (TITLE 47, UNITED STATES CODE, SECTION 230) AND RESERVES ALL RIGHTS GRANTED UNDER SUCH LAW.

MOBCASTER IS NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SITE OR THE SERVICE OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES EVEN IF MOBCASTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

17. Indemnification
You agree to defend, indemnify and hold each of Mobcaster and its subsidiaries and affiliated entities and their respective members, shareholders, officers, directors, employees and agents, and third-party content, distribution, advertising or other strategic partners harmless from and against any and all third party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorneys’ fees) due to or arising out of: (a) your use of and access to the Site or the Service; (b) your violation of any provision of these Terms of Use; (c) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (d) any claim that any of your Content caused damage to a third party.

18. Trademarks
Mobcaster and Mobcaster’s logo and other product and service names of Mobcaster are trademarks of Mobcaster (the “Mobcaster Marks”). You agree not to display, reproduce or otherwise use in any manner the Mobcaster Marks without Mobcaster’s prior written permission.

19. Copyright
The Service and the Site, including all text, images, software and other content contained therein, is the property of Mobcaster or its affiliates and is protected by United States and international copyright laws and you shall not obtain, and shall not attempt to obtain, any title to the rights in or to any such material.

20. Claims Of Copyright Infringement
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you are a copyright owner or an agent thereof and believe in good faith that materials hosted by Mobcaster infringe your copyright, you (or your agent) may send Mobcaster’s designated copyright agent a notice requesting that the material be removed or access to it blocked by providing Mobcaster’s Copyright Agent 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 the Site are covered by a single notification, a representative list of such works at the 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 Mobcaster to locate the material;
  • Information reasonably sufficient to permit a Mobcaster representative to contact you, such as a name, address, telephone number, and, if available, an e-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.

If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you (or your agent) to send Mobcaster’s copyright agent a counter-notice with the following information in writing (see 17 U.S.C 512(g)(3) for further detail):

  • Your physical or electronic signature;
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
  • Your name, address, telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located or, if your address is outside of the USA, for any judicial district in which Mobcaster may be found, and that you will accept service of process from the person who provided notification of the alleged infringement or an agent of such person.

If a counter-notice is received by our copyright agent, Mobcaster may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Mobcaster’s sole discretion.
Notices and counter-notices with respect to this website should be sent to Mobcaster’s copyright agent:
Sander Kooijman
Mobcaster
419 Lafayette Street, 2nd Floor
New York, New York 10003
Fax: (646)448-4694
Email: copyright@mobcaster.com

Mobcaster suggests that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA. Mobcaster will terminate a Member and a Member’s access to the Site or the Services if, under appropriate circumstances, the member is determined to be a repeat infringer.

For the avoidance of doubt, only DMCA notices and counter-notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Mobcaster online customer service or you can reach Mobcaster by telephone at (646)723-1422. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

21. Users From Outside The United States
By visiting the Site, submitting information or using the Service, you acknowledge that you accept the practices and policies outlined in these Terms of Use and consent to having your data transferred to and processed in the United States. If you do not agree to these Terms of Use, please do not use the Site or the Service.

The Site and the Service are controlled and operated by Mobcaster from the United States. Mobcaster does not represent or warrant that the Site or the Service, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Site or the Service do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Site and/or the Service related thereto and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. Mobcaster may limit the availability of the Site or the Service, in whole or in part, to any person, geographic area or jurisdiction that Mobcaster chooses, at any time and in Mobcaster’s sole discretion.

22. Miscellaneous
A. Notices: Any notice or other communication required or permitted to be made under these Terms of Use shall be delivered by electronic means transmitted to the electronic addresses set forth (1) in the case of Mobcaster, below, or (2) in the case of the User, the electronic address provided by the User upon registration. Any notice or other communication made in electronic form will have the same legal effect and enforceability as if made in non-electronic form. Either party may from time to time change its electronic address for receiving notices in writing, or its electronic address, in the case of Mobcaster, by posting a change of address on the Site or, for either party, by sending a notice to the other party by electronic means promptly confirmed. Mobcaster also may transmit notices, messages or other matters of importance on the Site; such transmissions shall constitute notice to all Users.

B. Governing Law: These Terms of Use are governed and interpreted in accordance with the laws of the State of New York and the United States of America, without giving effect to any choice of law or conflict of law provisions that would cause the application of any other state’s or nation’s laws.

C. Arbitration: THIS SECTION PROVIDES FOR RESOLUTION OF DISPUTES THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. All disputes arising under or relating to these Terms of Use or to your use (or inability to use) of the Site shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”), as amended by the terms of these Terms of Use. The Supplementary Procedures are available online at www.adr.org. To the extent that the arbitrator deems reasonable, the arbitrator may conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances. Any in-person appearances requested by the arbitrator shall be held in the County of New York in the State of New York. The arbitrator’s decision shall be based upon the substantive laws of the State of New York without regard to its principles of conflicts of law. Arbitration proceedings shall be conducted in English and shall be conducted in a manner that preserves confidentiality. The arbitrator’s decision shall follow the plain meaning of the relevant documents and shall be final and binding. The award rendered by the arbitrator(s) may be confirmed and enforced in any court having jurisdiction thereof. The foregoing shall not preclude Mobcaster from seeking any injunctive relief in U.S. state or federal courts for protection of its intellectual property rights (including the rights of its licensors), and you agree to exclusive jurisdiction by the federal and state courts located in New York County in the State of New York, and waive any jurisdictional, venue or inconvenient forum objections to such courts.

D. No Rights of Third Parties: These Terms of Use do not create rights enforceable by third parties.

E. Other: These Terms of Use do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. These Terms of Use will bind and inure to the benefit of each party’s successors and permitted assigns. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms of Use without Mobcaster’s prior express written consent. Mobcaster may assign, delegate and otherwise transfer any and all of its rights and obligations under these Terms of Use. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any part of these Terms of Use is found by a court of competent jurisdiction to be invalid or unenforceable, it will be replaced with language reflecting the original purpose in a valid and enforceable manner, and the enforceable Sections of these Terms of Use will remain binding upon the parties. Any heading, caption or Section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any Section or provision hereof. These Terms of Use, together with all policies referred to herein, constitute the entire agreement between you and Mobcaster with respect to your use of the Site and supersedes all prior or contemporaneous communications and proposals between you and Mobcaster regarding such subject matter. Without limitation, you agree that a printed version of these Terms of Use and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

23. Contacting Mobcaster
If you have any questions about Mobcaster generally, these Terms of Use the Site or the Service, please feel free to contact Mobcaster at:
Mobcaster
419 Lafayette Street, 2nd Floor
New York, New York 10003
Fax: (646)448-4694
Email: feedback@mobcaster.com

24. Notice to California Residents
Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information:
The provider of the website is
Mobcaster
419 Lafayette Street, 2nd Floor
New York, New York 10003
To file a complaint regarding the website or to receive further information regarding use of the Site, send a letter to the above address, contact Mobcaster via e-mail or telephone Mobcaster at (646)723-1422.  You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.

 

Effective Date: February 17, 2014