We are TWINKLE TV INC., a Washington State corporation (Twinkle), and the owner and operator of the video and music application and crowdfunding platform, as well as the website upon which the Platform is found at http://twinkle.tv (collectively, the Platform).
2. Venue Status.
2.1 Campaigns and Contributions. The Platform is an online crowdfunding venue specifically intended to: (a) permit an artist, songwriter, or their designated agent to upload a videos of their musical composition (collectively, Compositions) to the Platform; (b) permit an artist, songwriter, or their designated agent (a Campaign Owner) to establish a crowdfunding campaign (collectively, Campaigns) for their Composition with the intention of raising funds to create a professionally-produced video of such Composition (collectively, Produced Videos; as further detailed below) upon reaching certain crowdfunding goals as detailed in Section 4.1 of the CToU; and (c) permit Users the ability to contribute funds (collectively, Contributors) to existing Campaigns (collectively, Contributions). Twinkle does not promise or guarantee that a Campaign will reach its crowdfunding goals, or that any Produced Video will be provided on the Platform. Campaign Owners and Contributors use the Platform at their own risk.
2.2 Neutral Party Status. Twinkle is under no obligation to become involved in any Platform-related dispute between any Campaign Owner, Contributor, or any third party thereto. In addition, Twinkle is under no obligation to become involved in disputes regarding the determination of any rightful owner of a Campaign or Composition, and will not be obligated to take any action related to the same. In the event of any dispute between a Campaign Owner and Contributor, Twinkle may provide such Contributor the Campaign Owner’s e-mail address so that they may resolve their dispute outside of the Platform.
3. Age Qualifications. Campaign Owners, Contributors and any other Users must be 18 years of age or older to use or access the Platform without consent of any legal guardian. Campaign Owners, Contributors, and Users between the ages of 13-17 may only use the Platform with the express consent and supervision of a parent or legal guardian who is at least 18 years old, provided such parent or legal guardian also expressly agrees to be bound by the CToU, Terms, and Policy, and agrees to be responsible for such Campaign Owner or Contributor’s use of the Platform. Persons under 13 years of age must not use the Platform. Twinkle reserves the right to refuse use of the Platform to any party, and to reject, cancel, interrupt, remove, or suspend any Campaign or Contribution.
4. Campaign Goals; Fees and Costs.
4.1 Campaign Crowdfunding Qualifications.
4.1.1. Production Qualifications. As mentioned, Twinkle provides the Platform in part to permit Campaign Owners to raise funds to create a professionally-produced video of their designated Composition (collectively, the Produced Videos). Should a Campaign raise two-thousand and no/100 U.S. Dollars ($2,000.00) or more in Contributions (Campaign Goal) within thirty (30) calendar days of its launch on the Platform (the Campaign Period), Twinkle will provide its Campaign Owner all of the Contributions raised during the Campaign Period minus any Service Fees and Third Party Fees (as defined below). Under such circumstances, the Campaign Owner will be required to produce and upload a high quality version of the Produced Video to the Platform within six months of receipt of Campaign Contributions. A Campaign Owner who fails to provide a Produced Video of their Composition to the Platform within six months of receipt of their Campaign Contributions will be permanently banned from the Platform.
4.1.2. Unsuccessful Campaigns. Should a Campaign not reach its Campaign Goal during its Campaign Period: (a) such Campaign will be removed from the Platform; and (b) Contributors to such Campaign will receive a credit good for ninety (90) days to contribute amounts equal to their specific Contributions to other Campaigns on the Platform (collectively, Credits).
4.1.3. Terminated Campaigns. Should any Campaign be found to be in violation of any of the CToU, the Terms, or the Policy, such Campaign will be terminated and removed from the Platform. No Credits will be granted to any Contributors to such Campaigns.
4.1.4 Twinkle’s Contributions. As a part of its own business activities, Twinkle may contribute Contribution(s) to any Campaign it wishes to assist.
4.1.5 Disbursement Restrictions. Only a Campaign Owner shall be permitted to collect Contributions made to their Campaign. Twinkle does not recognize any third party and/or agency affiliated with any Campaign as a Campaign Owner and will not disburse any Campaign Contributions to any third party.
4.1.6 Identical Composition Campaigns; Official Versions. There may be two or more Campaign Owners who launch Campaigns for the same Composition on the Platform. Should such Campaign(s) otherwise have valid title or rights to the Composition, only Campaign(s) that reach their Campaign Goal will be entitled to a Produced Video. In cases where two or more Campaigns have valid title to a single Composition and such Campaigns reach their Campaign Goals, Twinkle will poll Platform users (known as a Platform Poll) to determine which Campaign’s version of the Composition is a better version of the same. A victorious Campaign’s version of a Composition shall be listed on the Platform as “Official Version of [Insert Composition Name]” (collectively, the Official Videos), while non-victorious Campaigns will automatically be titled “Cover Version of [Insert Composition Name]” (collectively, the Cover Videos). Should a Platform Poll not provide Twinkle sufficient indication that Platform users desire one Campaign’s version of a Composition or other Campaign(s), Twinkle will in its sole discretion determine which Campaign makes better use of a particular Composition. In cases where there is only one Campaign utilizing a particular Composition, such Campaign’s reaching of its Campaign Goal will deem its resulted Produced Video as the Official Video.
4.2 Service Fees. Twinkle does not charge any Campaign Owner any Platform service fee to establish their Campaign. Twinkle does charge Campaign Owners a Platform service fee (collectively, the Service Fees) based on: (a) the Contributions they raise via the Platform; and (b) revenue generated from the Produced Video as played on any platform or medium including without limitation the Platform. Twinkle shall charge the following Platform Service Fees including: (a) a fee to Campaign Owners totaling five percent (5%) of Contributions made to their Campaigns regardless of meeting their Campaign Goal. By using the Platform, Campaign Owners and Contributors agree to Twinkle’s Service Fees as detailed in this section of the CToU.
4.3 Third Party Service Fees. Twinkle will levy a service fee on Contributions to compensate third parties who assist Twinkle with providing the Platform’s services (collectively, Third Party Fees). Third Party Fees include without limitation a fee for Apple’s services to the Platform equal to thirty (30%) percent of all received Campaign Contributions to the same. Additional Third Party Fees may be levied against Campaigns that Twinkle will attempt to notify the same in advance.
4.4 Produced Video Revenue. For any Produced Video generated from Contributions raised from the Platform, copyright right holders to the Composition (collectively, Rights Holders) and Composition performers (collectively, Performers) agree to the following revenue rights for revenue generated from the playing, promotion, and use of the Produced Video on the Platform:
Rights Holder Revenue Rights (% of Revenue) Performers Revenue Rights
(% of Revenue)
Official Videos 32.5 32.5
Cover Videos 6.5 58.5
4.5 Third Party Rights and Revenue Obligations. Campaign Owners shall be fully responsible for ensuring that Rights Holders, Performers, and any interested third parties including without limitation any performance or song writer rights groups and music recording companies, for any particular Composition in an Official Video or Cover Video agree to revenue provisions as identified in these CToU, and that any payments otherwise owed to such parties for use of Composition on the Platform are full paid. Should any Campaign Owner be unable to obtain such assurances or make such payments, such Campaign Owner should not use the Platform.
4.6 Tax Compliance; Contribution Tax Status. Taxing authorities may classify funds raised on the Platform via Contributions as taxable income to any Campaign Owner, Rights Holder, Performer, and any beneficiary thereto. Campaign Owners will cooperate with Twinkle on any tax compliance related matters and will provide Twinkle any information and documentation on any Campaign Owner, Rights Holder, or Performer reasonably necessary to assist Twinkle or its agents with such task.
4.7 Chargebacks. If a chargeback is filed for a Contribution, the cardholder's financial institution will contact the payment processor for the transaction. The payment processor will then notify Twinkle of the chargeback. Twinkle may hold such Contribution, in whole or part, upon notice of such a chargeback, until the financial institution in question concludes its review of the disputed transaction. Once the financial institution concludes its review of the disputed transaction and notifies Twinkle through the payment processor, Twinkle will comply with the decision and will either refund the disputed charge from the Contribution or disburse the disputed funds to the Campaign Owner pursuant to CToU. If the disputed funds from a Contribution have already been disbursed to the Campaign Owner, Twinkle will hold funds from any subsequent Campaign Contribution disbursement or Produced Video revenue payment to cover the cost of the chargeback in question. Once notified of the financial institution’s decision concerning a specified chargeback, Twinkle will take appropriate the action as specified above.
4.8 Recovering Funds. By using the Platform, each Campaign Owner acknowledge and agree that Twinkle reserves the right to attempt to recover or hold Contributions from their Campaign for reasons including but not limited to: refunds, lost chargebacks, a Campaign Owner’s violation of the CToU and/or Terms, or other situations resulting in negative balances. Twinkle may obtain reimbursement of any amounts owed by a Campaign Owner to Twinkle by holding funds from their Campaign or seeking reimbursement from the Campaign Owner by any other lawful means, including by using third-party collections agencies. Each Campaign Owner authorizes Twinkle or any of its agents to use any or all of the foregoing methods to seek reimbursement of funds owed to Twinkle or any affected third parties.
4.9 Withholding of Funds. If a Campaign has a high number of requested Contribution refunds or chargebacks (as determined by Twinkle in its sole discretion), or if Twinkle is made aware of a Campaign Owner’s failure to remit amounts owed to a third party relating to a Contribution or Produced Video, Twinkle may withhold a percentage of Contributions or Produced Video revenue for period of time as determined by Twinkle in its sole discretion. Each Campaign Owner acknowledges and agrees that if they do not act in accordance with the CToU, the Terms, or the Policy, Twinkle may obtain reimbursement of any amounts owed by such Campaign Owner to Twinkle or any third party by holding funds from their Campaign(s) and Produced Video revenue, contact third parties used by Twinkle from Platform services to do the same, or seek reimbursement from the Campaign Owner by any other lawful means, including without limitation using third-party collections services.
4.10 Contributor Refunds. Contributors may request a refund from Twinkle before the end of a Campaign’s Campaign Period. A Contributor may qualify for a refund of their Contribution(s) to a Campaign minus Service Fees and Third-Party Fees unless: (a) Contribution funds have already been transferred to a Campaign Owner; (b) such Campaign has met its Campaign Goal; and/or (c) Twinkle determines that there has been a violation of this CToU, the Terms, or the Policy. Contributors should contact their Campaign Owners directly regarding refunds of their Contributions.
5. Prohibited Campaign and Platform Activities.
5.1 Prohibited Campaigns. A Campaign Owner is not permitted to create a Campaign that: (a) raise funds for illegal activities; (b) misappropriates or infringes the copyright, trademark, patent, personality right, or other right of any party; (c) causes harm to any person or property; (d) includes any threatening, abusive, harassing, defamatory, libelous, or profane content, or content that is invasive of another’s privacy; (e) promotes violence, degradation, subjugation, discrimination or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity; and/or (f) otherwise violates any term of the CToU, Terms, or Policy. Twinkle may suspend or cancel any Campaign that is deemed to violate any of these provisions.
5.2 Prohibited Platform Activities. No Campaign Owner, Contributor or User shall: (a) engage in any activity that interferes with or disrupts the proper working of the Platform or any activities conducted on the Platform; (b) bypass any measures Twinkle may use to prevent or restrict access to the Platform; (c) run any spam-related software via the Platform; (d) take any action that imposes, in Twinkle’s absolute and sole discretion, an unreasonable load on the Platform’s infrastructure; (e) use manual or automated software, devices, or other processes to “crawl” or “spider” any webpage or portion of the Platform; and/or (f) spam the comments sections of any Campaign or other comment section of the Platform with unsolicited or unauthorized offers of goods and services, advertising, promotional material, junk mail, spam or chain letters, or inappropriate messages. Twinkle reserves the right to suspend or cancel any Campaign and terminate any User Account for conducting any such prohibited activities.
6. Duties and Obligations.
6.1 Campaign Owners. Campaign Owners will respond promptly and truthfully to all questions posed to them by Twinkle or any Contributor. If any Campaign Owner is unable to resolve a dispute with any Contributor, such Campaign Owner will work with such Contributor to reach a mutually satisfactory resolution, which may include refunding of the Contributor’s Contribution. A CAMPAIGN OWNER’S FAILURE TO ADEQUATELY FULFILL A CAMPAIGN OBLIGATION, INCLUDING WITHOUT LIMITATION PRODUCTION OF A PRODUCED VIDEO, MAY RESULT IN TWINKLE SUSPENDING OR TERMINATING SUCH CAMPAIGN, AND SEEKING REIMBURSEMENT OF CONTRIBUTIONS RAISED FOR SUCH CAMPAIGN, INCLUDING WITHOUT LIMITATION USING THIRD PARTY COLLECTIONS SERVICES. Campaign Owners will comply with all applicable laws and regulations in the use of Contributions and Produced Video production. Campaign Owners are responsible for collecting and remitting any taxes on Contributions, and any taxes due in connection with the Produced Video.
6.2 Contributor Obligations. Contributors are solely responsible for asking questions and investigating Campaign Owners and Campaigns to the extent they feel is necessary before making a Contribution. All Contributions are made voluntarily and at the sole discretion and risk of the Contributor. Twinkle does not guarantee that: (a) a Contribution will be used as promised; and (b) a Campaign Owner will meet their Campaign Goal, will deliver a Produced Video, or that the Campaign will achieve its goals. Twinkle does not endorse, guarantee, make representations, or provide warranties for or about the quality, safety, morality, or legality of any Campaign, Composition, Produced Video, or the truth or accuracy of User content posted on the Platform. Contributors are solely responsible for determining how to treat their Contributions and receipt of any Benefits for tax purposes.
8. Warranties and Representations.
8.1 Campaign Owners. Campaign Owners warrant and represent that they: (a) are of age and have obtained necessary authorizations to use the Platform, and are fully able and competent to enter into, accept, and comply with the CToU; (b) will only use Contributions they receive from their Campaign to produce a Produced Video; (c) will not modify, adapt, or access the Platform by means not expressly authorized by Twinkle; (d) will not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform without the express written permission of Twinkle; (e) will not use or access the Platform for any purpose that is unlawful or prohibited by these CToU; and (f) will only provide content and works to the Platform, including without limitations Composition(s) that they own or have rights to provide to the same.
8.2 Contributors. Contributors warrant and represent that they: (a) are of age and have obtained necessary authorizations to use the Platform, and are fully able and competent to enter into, accept, and comply with the CToU; (b) will not modify, adapt, or access the Platform by means not expressly authorized by Twinkle; (c) will not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Platform without the express written permission of Twinkle; and (d) will not use or access the Platform for any purpose that is unlawful or prohibited by these CToU.
9. Limitation of Liability.
9.1 Warranty Disclaimer. The Platform is licensed and provided to Campaign Owners and Contributors “as is”, and Twinkle disclaims any and all other warranties pertaining to the Platform, whether express, implied, or statutory including, without limitation, any implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, timeliness, title, or non-infringement of third party rights, to the fullest extent authorized by law. Twinkle expressly does not warrant that: (a) the Platform is of a particular quality; (b) the Platform will meet any person or entity’s requirements and expectations; (c) operation of the Platform will be uninterrupted, timely, secure, or error free; (d) defects or errors in the Platform will be corrected; (e) the Platform will be compatible with future products or services offered by Twinkle; and (f) any information or data stored or transmitted through the Platform will not be lost, corrupted, or destroyed. Campaign Owners and Contributors assume responsibility for selecting the Platform to achieve their intended requirements and expectations, and for the results obtained from their use of the Platform. Each Campaign Owner and Contributor shall bear the entire risk as to the quality and the performance of the Platform.
9.2 Damage Limitations. In no event will Twinkle be liable to any Campaign Owner or Contributor for any direct, indirect, incidental, special, punitive or consequential damages whatsoever resulting from: (a) any Campaign Owner or Contributor’s use or misuse of the Platform; (b) personal injury or property damage of any kind resulting from any Campaign Owner or Contributor’s use of the Platform, whether based on warranty, contract, tort, or other legal theory, and whether or not Twinkle has been advised of the possibility of such damages; (c) conduct of any User on the Platform; (d) unauthorized access to data storage facilities or equipment owned, lease or used by Twinkle; (e) interruption, unavailability or errors associated with the Platform; (f) any delayed or misreporting of information, data or content to any local, state, or federal agency or department; and/or (g) bugs, viruses, or similar code which may be transmitted to or through the Platform. The foregoing limitations of liability apply to the fullest extent permitted by law.
11. Modifications. Twinkle reserves the right, at its sole discretion, to modify, suspend, or discontinue, temporarily or permanently, the Platform, or any aspect or portion thereof, at any time by posting a notice on the Platform. Twinkle may also impose temporary or permanent limits on certain Platform features or restrict access to portions or all of the same without notice. Twinkle will not be liable to any Campaign Owner or Contributor for any change or modification made pursuant to this section of the CToU, except as expressly stated in writing between the parties. If any Campaign Owner or Contributor does not agree to any changes made pursuant to this section of the CToU, they must discontinue their subsequent use of the Platform. Any Campaign Owner or Contributor’s use of the Platform following such changes constitutes their acceptance of such changes.
12. Export Compliance. No Campaign Owner or Contributor may use, export, re-export, import, sell or transfer the Platform except as authorized by U.S. law, the laws of the jurisdiction in which they obtained the Platform, and any other applicable laws and regulations. Each Campaign Owner and Contributor represents and warrants that: (a) they are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) they are not listed on any U.S. Government list of prohibited or restricted parties. Each Campaign Owner and Contributor also acknowledges and agrees that the Platform may be subject to other U.S. and foreign laws and regulations governing the export of Platform, or transfer of Campaign Contributions, by physical and electronic means. Each Campaign Owner and Contributor agrees to comply with all applicable U.S. and foreign laws that apply to the Platform, as well as end-user, end-use, and destination restrictions imposed by U.S. and/or foreign governments.
13.1 Governing Law, Jurisdiction and Dispute Resolution. The CToU will be governed by and interpreted under the laws of the State of Washington, and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. Parties will conduct friendly negotiations to resolve any dispute arising from or out of these CToU, which may include mediation if requested by any party. Should mediation fail, Campaign Owners, Contributors and Users irrevocably consents to resolve any dispute or conflict arising out of or relating to the CToU by binding arbitration in Seattle, Washington by one (1) arbitrator at JAMS ARBITRATION AND MEDIATION at 1420 5th Avenue, Suite 1650, Seattle, Washington 98101, and in accordance with the AMERICAN ARBITRATION ASSOCIATION’S COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES. Any judgment resulting from such a proceeding will be enforceable in any applicable state or federal Court. The party substantially prevailing in any such proceeding will be entitled to recover all costs and expenses of such proceeding, including reasonable attorney’s fees and costs.
13.2 Assignment. These Terms will be binding on and inure to the benefit of the parties hereto and their respective successors, assigns, heirs and personal representatives. Except as otherwise provided herein, no Campaign Owner, Contributor, nor User shall assign or transfer any right or obligation under this CToU without the prior written consent of Twinkle, and any attempted assignment without Twinkle’s prior written consent will be null and void. Twinkle may transfer any rights or obligations under these CToU without the prior consent of any Campaign Owner, Contributor, or User, written or otherwise.
13.3 Relationship of the Parties. Campaign Owners, Contributors, Users, and Twinkle agree that no joint venture, partnership, employment, or agency relationship exists between such parties as a result of these CToU or their use of the Platform.
13.4 Completeness and Severability. This CToU constitutes the entire CToU between Campaign Owners, Contributors, Users, and Twinkle concerning Campaign Owners and Contributors use of the Platform. If any provision of these CToU is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this CToU, which remain in full force and effect.
13.5 Waivers. A waiver of any term of these CToU will not be a further or continuing waiver of such term or any other term of these CToU, and Twinkle’s failure to assert any right or provision under these CToU does not constitute a waiver of such right or provision.
13.6 Questions. Questions about these CToU or the Platform should be sent to Twinkle via e-mail to firstname.lastname@example.org or via mail to TWINKLE TV INC., ATTN: PLATFORM QUESTIONS, at 1546 NW 56th Street #425, Seattle WA 98107, USA.