THE OFFICIAL HALLE BERRY FAN CLUB MEMBERSHIP AGREEMENT
TERMS & CONDITIONS
Last Updated: November 10, 2016
1. HALLEWOOD SERVICES AND MEMBERSHIP FEATURES.
(a) Hallewood Services. The Services as mentioned herein may include any one or more of the following: viewing and/or using a website, whether publicly accessible or with restricted access; contests; email subscription lists; search services; event access, and other items; email, chat, instant messaging, message boards, comments, forums, blogs, social networking and posting on social media channels including Facebook, Twitter, and Instagram, and other forms of online and/or electronic communication; the uploading and downloading of music, photos, text, video, and other audio and visual content; the viewing of and listening to audio and visual content; personalized content and other creative and/or interactive tools and activities; and any other features, functionality, materials or activities which may be available from time to time on a Hallewood. Internet access is not included in the Services and separate third party fees may apply (collectively, the “Services”).
(b) Hallewood Membership Features. Hallewood includes several features, and they may vary from time to time in our sole discretion. As a member of Hallewood, you will receive the following (collectively, the “Features”):
(i) The opportunity to participate in Hallewood fan contests;
(ii) Access to exclusive and behind-the-scenes content; and
(iii) The opportunity to participate in Hallewood Meet and Greets.
(a) Eligibility and Approval. We, in our sole absolute discretion, will have the right to refuse to allow you to become a member of Hallewood. Without limitation of the foregoing, we will have the right to perform a full background check prior to activating your membership account, and refuse to allow you to become a member if we determine the results of such background check are unsatisfactory to grant membership.
(c) Registration. You must provide us with accurate, complete, and updated complete information (the "Registration Information") on Hallewood online registration form when you create a membership account. If you provide us with any Registration Information or other information that isn't truthful, complete, or up-to-date, or if we have grounds to suspect that any of it isn't truthful, complete, or up-to-date, then we may suspend, terminate, or take any other legal action with respect to your account. You may not: (i) select a username of another person with the intent to impersonate that person; (ii) use a name subject to the rights of any other party without their authorization; or (iii) use a username that Hallewood, in its sole discretion, deems inappropriate, vulgar, or offensive.
(d) Membership Limitations. Hallewood will accept only one membership per person. If we determine that a single person has joined (or attempted to join) more than once, or if we receive multiple membership applications from a single and/or cluster of e-mail addresses verified to single user, we reserve the right to cancel all applicable memberships. Your membership is personal to you, and you may not sell, give, or otherwise transfer your membership to anyone else.
(e) IP Address Ownership. We shall maintain and control ownership of all IP numbers and addresses that may be assigned to you by us and we reserve, in our sole discretion, the right to change or remove any and all such IP numbers and addresses.
4. MODIFICATION OF TERMS.
5. COMMUNITY STANDARDS.
(a) Username and Password; Liability of Activities. If you are given a password to access for Hallewood, you are responsible for maintaining the confidentiality of your password. Further, you are solely responsible for all activities that occur under your account. You agree to immediately notify us at firstname.lastname@example.org of any known or suspected unauthorized use of your membership account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, COMPANY OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT. WE RESERVE THE RIGHT TO REFUSE MEMBERSHIP TO THE HALLEWOOD TO YOU OR ANY THIRD PARTY.
(b) Prohibited Use of Hallewood Content. We grant you permission to access and use the Hallewood Services as set forth in this Member Agreement solely for your personal use. Any unauthorized copying duplication or distribution of any content appearing in or in connection with Hallewood, whether originating from us or any third party ("Hallewood Content"), including, without limitation, content that is modified, merged, or included with Hallewood Content is expressly prohibited. You agree not to, in whole or in part, copy, duplicate, create derivative works based on, modify, sell, distribute, lease, loan, rent, repost, grant a security interest in, reverse engineer, or otherwise use the Hallewood Content; any attempt to do so may result in, among other things, the immediate termination of your membership.
6. OWNERSHIP; PROPRIETARY RIGHTS.
(a) General. Hallewood and its Services, including the content, visual interfaces, interactive features, audio, video, audio-visual material, information, graphics, design, compilation, computer code, products, software, services, proprietary information, service marks, trademarks, trade names, distinctive information such as logos, the selection, sequence, "look and feel" and arrangement of items, and all other elements of the Hallewood Services and Hallewood Content that are provided by us (“Hallewood Materials”), are owned and/or licensed by us , and are legally protected, without limitation, under U.S. federal and state laws and regulations, as well as applicable foreign laws, regulations and treaties. Hallewood Materials do not include Non-Hallewood Content (as defined below). Except as expressly authorized by us, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Hallewood Services, Hallewood Content or the Hallewood Materials. Hallewood reserves all rights not expressly granted in this Member Agreement. You shall not acquire any right, title, or interest to the Hallewood Materials, except for the limited rights expressly set forth in this Member Agreement.
(b) Apps and Other Downloadable Software. If any of the Hallewood Materials that we make available to you is software capable of being downloaded, then the software and all files, images and data relating to the software will be licensed to you by us. This license is a personal, limited, non-transferable, non-sublicensable, revocable license, and we reserve the right to alter or revoke the license at any time by providing notice to you. Upon receiving notice of revocation, you must destroy all copies of the software in your possession and/or residing on systems under your control. You do not own the downloaded software, and we do not transfer ownership of the software to you. We retain full ownership of and title to the downloaded software and all intellectual property rights related to the software. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the software to a human-perceivable form (except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation). Software that is downloaded from Hallewood Services, including the Hallewood Site is subject to United States export control laws. If you download software from Hallewood Services, including the Hallewood Site, you represent and warrant to us that you are not acting in violation of those laws.
7. USER CONTENT.
(a) General. Hallewood may now or in the future permit you and other Members to post or link media, text, audio and video recordings, photos, graphics, commentary or other information or content (“User Content”), and to host and/or share such User Content. User Content is not controlled by us. We make no representations that your User Content will remain available via Hallewood and/or its Services in any way. We may remove your User Content at our sole discretion. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST FOR VIEWING ON THE HALLEWOOD SITE IS MADE PUBLICLY AVAILABLE TO MEMBERS OF HALLEWOOD, AND WE DO NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.
(b) Grant of Rights. By submitting User Content to Hallewood, you hereby grant us and our affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with Hallewood and Company’s (and its successor’s, transferees’, sublicensees’ and their respective affiliates’) business, including without limitation for promoting and redistributing part or all of Hallewood Services (and derivative works thereof) in any media formats and through any media channels or through merchandising. You grant Company and its affiliates, transferees and sublicensees (and their respective affiliates) the right to use the name that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each Member of Hallewood and User of the Hallewood Site a non-exclusive license to access your User Content, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of Hallewood Services and this Member Agreement. The above licenses granted by you in User Content you submit to Hallewood shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your Hallewood Member account, or any User Content following any deactivation or deletion of your Hallewood Member account, you may specifically notify Company regarding the termination of the foregoing license from you to Company, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Company. You understand and agree, however, that even following such termination, Company may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable.
(c) Your Representations and Warranties Regarding User Content. You shall be solely responsible for your own User Content and the consequences of submitting and/or posting such Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Company to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Content to enable inclusion and use of User Content in the manner contemplated by Company and this Member Agreement, and to grant the rights and license set forth in this Section, and (ii) your User Content, Company’s use of such User Content pursuant to this Member Agreement, and Company’s exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation. (d) Prohibited Uses of User Content. Except as otherwise permitted by this Member Agreement, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to Hallewood: (i) any falsehoods or misrepresentations that could damage Company, Halle Berry or any third party; (ii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iii) advertisements or solicitations of business, products, or services; or (iv) any material that would be harmful to minors in any manner. (e) No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Hallewood Members with respect to such User Content.
8. Non-Hallewood Content.
(a) Disclaimer. You understand that as a member of Hallewood, you will be exposed to User Content, advertising and other third party content (together, the “Non-Hallewood Content”) from a variety of sources, and that you may be exposed to Non-Hallewood Content that is inaccurate, offensive, indecent, or otherwise objectionable. Company does not endorse any Non-Hallewood Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Hallewood be liable in any way for or in connection with the Non-Hallewood Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-Hallewood Content, any intellectual property infringement or misappropriation with regard to any Non-Hallewood Content, or for any loss or damage of any kind incurred as a result of the use of any Non- Hallewood Content posted, emailed or otherwise displayed or transmitted by Hallewood or through Hallewood Services.
(b) Non-Monitoring of Members and Non-Hallewood Content. You understand that you, and not Company, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available through Hallewood Services. We do not control Non-Hallewood Content posted by Members or otherwise made available by other persons or entities and do not have any obligation to monitor such Non-Hallewood Content for any purpose. If at any time Company chooses, in its sole discretion, to monitor the Non-Hallewood Content, we nonetheless assume no responsibility for the Non-Hallewood Content, no obligation to modify or remove any inappropriate Non-Hallewood Content, no obligation to continue to monitor the Non-Hallewood Content and no responsibility for the conduct of the Member or other person or entity submitting any such Non-Hallewood Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non-Hallewood Content, including any reliance on the accuracy, completeness, usefulness, non-infringement or legality of such User Content or other Non-Hallewood Content. (c) Removal of Non-Hallewood Content. Company and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-Hallewood Content that is available through Hallewood Services in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.
9. Member Conduct Agreement.
As a member of Hallewood, you shall agree to the following:
(a) You will not use Hallewood Services for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by terms of this Member Agreement.
(b) Any use by you of any of the Hallewood Services, Hallewood Content, and Hallewood Materials other than for your personal use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of Hallewood Services or Hallewood Content, use of the Hallewood Services, access to the Hallewood Site, or Non-Hallewood Content (as described below) provided by Hallewood, for any purpose other than for your personal use.
(c) You agree not to become a member of Hallewood or access or use Hallewood Services or Hallewood Content if you do not meet the eligibility requirements described in Section 2 above.
(d) You agree not to defame, harass, abuse, threaten, stalk or defraud any Hallewood Members, or collect, or attempt to collect personal information about Hallewood Members or third parties without their consent.
(e) You agree not to intentionally interfere with or damage, impair or disable the operation of Hallewood, its Services or any Member’s enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on any Hallewood Services, including its websites, with the intended result of denying service or access to other Members.
(f) You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of Hallewood Services and/or Hallewood Content or Materials, features that prevent or restrict the use or copying of any part of Hallewood Services and/or Hallewood Content or Materials, or features that enforce limitations on the use or access of Hallewood Services and/or Hallewood Content or Materials.
(g) You agree not to attempt to gain unauthorized access to or any part of it, other accounts, computer systems or networks connected to Hallewood or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Hallewood, or any activities conducted by Hallewood through its Hallewood Services.
(h) You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available by Hallewood. You agree neither to modify the Hallewood Services, Hallewood Content or Materials in any manner or form (other than contributing User Content as enabled by the Hallewood Services’ functionality and in accordance with this Member Agreement), nor to use modified versions of the Hallewood Services, including (without limitation) for the purpose of obtaining unauthorized access to the Hallewood Site.
(i) You agree that you will not use any robot, spider, scraper, or other automated means to access Hallewood Services, including its website, for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to Hallewood Services.
(j) You agree not to utilize framing techniques to enclose any trademark, logo, or other Hallewood Materials without our express prior written consent. You agree not to use any meta tags or any other “hidden text” utilizing Hallewood’s or Company’s name or trademarks without Company’s express prior written consent.
(k) You agree not to use any Hallewood’s or Company’s logos, graphics, or trademarks as part of the link without our express prior written consent.
(l) You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other members of Hallewood. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.
(m) You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any of Hallewood Services, its websites or Hallewood Content or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(n) You agree not to modify, adapt, translate, or create derivative works based upon Hallewood Services or Hallewood Content or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
(o) You agree not to impersonate another person, including another Hallewood member or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
(p) In the event your Hallewood Membership is terminated, you agree not to return under another username you register.
Unauthorized or prohibited use of the Hallewood Services, Hallewood Content or the Hallewood Materials may subject you to civil liability, criminal prosecution, or both under federal, state and local laws.
10. TERM AND CONDITIONS VIOLATIONS; MEMBER SUSPENSION AND TERMINATION.
(a) Service Availability. We reserve the right at any time to suspend, modify or discontinue, temporarily or permanently, any portion of Hallewood Services or of Hallewood itself, with or without prior notice. Hallewood and its Services are offered at the discretion of Company and Company has the right to modify or discontinue, temporarily or permanently, Hallewood, in whole or in part for any reason, at its sole discretion, with or without notice to you. You agree that we will not be liable to you or to any third party for any suspension, modification or discontinuance. Further, the content, products and services provided by Hallewood may be out of date, and Hallewood makes no commitment to update these materials on any of Hallewood Services.
(b) Suspension and/or Termination of Member Account. We expressly reserve the right to immediately modify, suspend or terminate your Member Account and refuse current or future use of any Hallewood Services in the following situations: (i) if we, in our sole discretion, believe you have violated or tried to violate the rights of others; or (ii) if we become aware of information indicating a safety concern for you, other Hallewood Members, or the general public, (iii) if we, in our sole discretion, believe that you have acted inconsistently with the spirit or letter of this Member Agreement or (iv) if we, in our sole discretion, believe you have violated any of the Member Guidelines as outlined in Section 9 above. Notwithstanding the foregoing, we, in our sole and absolute discretion, may terminate your access to the Hallewood Services or your Hallewood Member Account for any reason, including, without limitation, your breach of this Member Agreement, with or without notice to you and without liability to you or any third party. Upon such termination, we may immediately deactivate or delete your account and all related information and files in such accounts and/or bar any further access to such account or files, without liability to you or any third party for doing so.
11. Member Disagreements.
You are solely responsible for your involvement with other Hallewood Members. We reserve the right, but have no obligation, to monitor disagreements between you and other Members. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL LIABILITY RELATED TO ANY MEMBER DISAGREEMENT.
Company, Hallewood Members and other third parties may provide links in Hallewood Services or on the Hallewood Site to other sites, including the content therein (“Reference Sites”). We have no control over such Reference Sites or their content, and therefore make no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or other content linked to by Hallewood. We provide links to you only as a convenience, and the inclusion of any link within any of Hallewood Services does not imply our affiliation, endorsement, or adoption of the linked Reference Site or other content or any information therein. If you choose to correspond or engage in transactions with any other person, organization or business found on or through your use of Hallewood Services, you acknowledge and agree that we are not a party to, and will not be responsible for, your interaction with such person, organization or business, including its treatment of your information, your User Content, and/or the terms and conditions applicable to any transaction between you and such third party. You agree that we have no responsibility or liability for any loss or damage of any kind that you may suffer as the result of any such interaction or the presence of such person, organizations or businesses found through your use of Hallewood Service. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any services other than Hallewood Services. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.
13. INTERNATIONAL HALLEWOOD MEMBERS.
(a) Possible limits on Services and Features. Hallewood is controlled and offered by us from our facilities in the United States of America. We make no representations that Hallewood Services are appropriate or available for use in other locations. If you join and/or access the Hallewood from a location outside the United States or Canada, you may not enjoy all or portions of Features and/or Services of Hallewood. Those who choose to join or to access Hallewood from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. We reserve the right to limit the availability of Hallewood, the Service and/or Feature or any portion thereof to any person, geographic area, or jurisdiction we desire, at any time and in our sole discretion.
(c) Your obligations. The Internet spans the world. Because of this, you must comply with all applicable local laws, rules, and regulations, whether those of other countries or of the individual states within the United States, regarding online conduct, acceptable Content, and your use of the Services and Features. In addition, you must comply with all applicable laws and regulations regarding the transmission of technical data exported from the United States or the country from which you use the Service, including, without limitation, any and all restrictions on encryption technology. To the extent allowed in the jurisdiction where you are located, you waive your right to assert claims or avail yourself of protections afforded you in that jurisdiction which are not available in the United States of America.
14. INDEMNIFICATION; HOLD HARMLESS.
YOU AGREE TO INDEMNIFY AND HOLD HARMLESS BELLAH BRANDS, THE BRAINTRUST, AND THEIR PARENT, SUBSIDIARIES, AFFILIATES OR ANY RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP), AND THE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THEM FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (i) YOUR USE OR MISUSE OF HALLEWOOD SERVICES; (ii) YOUR USER CONTENT, INCLUDING COMPANY’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (iii) YOUR VIOLATION OF THESE TERMS; (iv) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (v) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (vi) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY COMPANY. COMPANY RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY US AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY. COMPANY WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.
15. DISCLAIMERS; NO WARRANTIES.
(a) ACKNOWLEDGMENT. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 15, AND SECTIONS 16 AND 17 BELOW, THE TERM COMPANY INCLUDES BOTH BELLAH BRANDS’ AND THE BRAINTRUST’S PARENT, SUBSIDIARY, AFFILIATED AND OTHER RELATED COMPANIES (INCLUDING THOSE WHICH SHARE SUBSTANTIALLY COMMON OWNERSHIP) AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.
(b) NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH HALLEWOOD OR HALLEWOOD SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(c) “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” YOU EXPRESSLY AGREE THAT YOUR HALLEWOOD MEMBERSHIP OR THE USE OF HALLEWOOD SERVICES IS AT YOUR SOLE RISK. HALLEWOOD SERVICES, THE HALLEWOOD SITE, USER CONTENT, NON-HALLEWOOD CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH YOUR HALLEWOOD MEMBERSHIP ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
(d) OPERATION OF HALLEWOOD SERVICES AND NON-HALLEWOOD CONTENT. COMPANY DOES NOT WARRANT THAT THE HALLEWOOD MATERIALS, USER CONTENT, NON-HALLEWOOD CONTENT, HALLEWOOD SERVICES OR THE HALLEWOOD SITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH HALLEWOOD SERVICES OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
(e) ACCURACY. COMPANY DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF HALLEWOOD SERVICES OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. (f) HARM TO YOUR COMPUTER. YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE HALLEWOOD SERVICES OR THE HALLEWOOD SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA.
16. LIMITATION OF LIABILITY AND DAMAGES.
(a) LIMITATION OF LIABILITY. SUBJECT ALWAYS TO SECTION 16(a), UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL COMPANY OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, HALLEWOOD MATERIALS AND USER CONTENT ON ANY OF HALLEWOOD SERVICES OR ANY REFERENCE SITES, INCLUDING THE HALLEWOOD SITE ITSELF, OR ANY OTHER INTERACTIONS WITH COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) LIMITATION OF DAMAGES. SUBJECT ALWAYS TO SECTION 16(a), IN NO EVENT SHALL COMPANY OR ITS THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF ANY HALLEWOOD SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF ONE HUNDRED DOLLARS (USD $100) OR ONE-HALF OF THE ANNUAL FEES PAID BY YOU TO COMPANY (IF APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.
(c) THIRD PARTY PRODUCTS AND SERVICES. SOME USERS MAY USE HALLEWOOD SERVICES TO MARKET PRODUCTS AND/OR SERVICES. THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR SERVICES MARKETED, SOLD OR PROVIDED BY USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN COMPANY AND RECEIVED BY YOU THROUGH OR ADVERTISED ON HALLEWOOD SERVICES OR THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION ANY REFERENCE SITES. 17. LIMITATIONS BY APPLICABLE LAW; BASIS OF THE BARGAIN.
(a) LIMITATIONS BY APPLICABLE LAW. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED. IF YOU ARE A USER IN THE EUROPEAN UNION, NOTHING IN THESE TERMS ATTEMPTS TO EXCLUDE OR LIMIT COMPANY’S LIABILITY FOR: (i) FRAUD OR FRAUDULENT MISREPRESENTATION; (ii) DEATH OR PERSONAL INJURY CAUSED BY NEGILGENCE; OR (iii) ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
(b) BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT COMPANY HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND COMPANY, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND COMPANY. YOU ACKNOWLEDGE AND AGREE THAT COMPANY WOULD NOT BE ABLE TO PROVIDE THE HALLEWOOD SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
18. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE.
(a) Infringement Claims. If you are a copyright owner or an agent thereof, and believe that any User Content or other Non-Hallewood Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail).
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity in the Hallewood Services, including the Hallewood Site and that is to be removed or access to which is to be disabled, including the link or URL for all such material in the Hallewood Services, including the Hallewood Site;
(iv) Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(vii) The address to receive notifications of claimed infringement is:
c/o The Braintrust
6121 Sunset Blvd
Los Angeles, CA 90028
FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.
(b) Notice And Takedown. If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below. We may, at our discretion, deny access to the Hallewood Services by, or disable and/or terminate the accounts of, Members who may be infringers.
(c) Copyright Counter-Notices. If content you posted in Hallewood Services or on the Hallewood Site was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:
(i) To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below.
(ii) Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney. (d) Elements of Counter-Notification. To expedite our ability to process your counter-notification, please use the following format (including section numbers):
(i) Identify the specific URLs of (or other information sufficient to allow us to identify) material that we have removed or to which we have disabled access.
(ii) Provide your full name, address, telephone number, email address and, if you are a registered Member, the Username of your Hallewood Member account.
(iii) Provide a statement that you consent to the jurisdiction of Los Angeles, California and the Federal District Court for the judicial district in which your address is located (if your address is outside of the U.S.A.), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above, or an agent of such person.
(iv) Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
(v) The notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address:
c/o The Braintrust
6121 Sunset Blvd
Los Angeles, CA 90028
After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter-notification, it includes any of your Identifying Information set forth in the counter-notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant.
After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material provided by any of Hallewood Services, or on the Hallewood Site. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).
(e) Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted in any of Hallewood Services or on the Hallewood Site is being infringed, or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of California. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”
(f) Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.
(a) Notice. We may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the Hallewood Site. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after an email is sent, unless we are notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide us with notices only by mail to the address indicated in subsection (l) below.
(b) Governing Law. This Hallewood Membership Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. The Uniform Computer Information Transactions Act does not apply to this Member Agreement.
(c) Jurisdiction. You agree that any action at law or in equity arising out of or relating to this Member Agreement or Hallewood Services shall be filed only in the state or federal courts in and for the County of Los Angeles and State of Los Angeles and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action. You agree that you will not file or participate in a class action against us. IN ANY ACTION OR PROCEEDING COMMENCED TO ENFORCE ANY RIGHT OR OBLIGATION UNDER THIS AGREEMENT, YOUR HALLEWOOD MEMBERSHIP, OR YOUR USE OF HALLEWOOD SERVICES OR WITH RESPECT TO THE SUBJECT MATTER HEREOF, YOU HEREBY WAIVE ANY RIGHT YOU MAY NOW HAVE OR HEREAFTER POSSESS TO A TRIAL BY JURY.
(d) Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO YOUR HALLEWOOD MEMBERSHIP OR USE OF HALLEWOOD SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If, for any reason, we believe, have reason to believe, suspect or are notified of any act, omission or circumstances which may or could (i) compromise or endanger the health, well being or safety of any person, (ii) cause or lead to damage to persons or property (tangible or intangible), (iii) adversely affect, infringe upon or misappropriate the rights of others, (iv) harass or interfere with any other user or person, firm or enterprise, (v) interfere with or bypass our security or other protective measures applicable to our systems, networks and communications capabilities, (vi) breach or violate this Member Agreement, or (vii) violate any law or regulation, we have the right, reserving cumulatively all other rights and remedies available to us at law, in equity and under this agreement with you, to report and provide information to any and all regulatory and law enforcement authorities and agencies and take any action permitted by law.
(e) Waiver. A provision of this Member Agreement may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of either party to exercise or enforce any right or provision of this Member Agreement will not constitute a waiver of such right or provision.
(f) Severability. If any provision of this Member Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.
(g) Assignment. The Hallewood Membership Agreement and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any assignment attempted to be made in violation of this Member Agreement shall be void.
(h) No Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Bellah Brands or The Braintrust as a result of this Member Agreement or use of Hallewood Services. You further acknowledge that by submitting User Content or other Non-Hallewood Content, no confidential, fiduciary, contractually implied or other relationship is created between you and Bellah Brands and The Braintrust other than pursuant to these Terms.
(i) Survival. Sections 5 (other than your duty to update account information), 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 will survive any termination of this Member Agreement or your account, whether by you or by us.
(j) Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
(k) Entire Agreement. This is the entire agreement between you and Company relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter, excluding any Services Agreement that you may have entered into with Company. These Terms shall not be modified except in writing, signed by both parties, or by a change to these Terms made by Company as set forth in Section 4 above.
(l) Disclosures. The services hereunder are offered by The Braintrust, Inc. located at: 6121 Sunset Blvd, Los Angeles, CA 90028.
Copyright © 2017. The Braintrust, Inc. All Rights Reserved.