Wayfarer Studios LLC (“Company”) is the operator of wayfarerstudios.com (the “Website”).
THEREFORE, IT IS VERY IMPORTANT THAT YOU COMPLETELY READ THIS AGREEMENT BECAUSE BY YOUR CONTINUED USE OF THE WEBSITE, ACCESSING CONTENT FROM THE WEBSITE OR USE OF ANY SERVICE PROVIDED BY THE COMPANY YOU AGREE THAT YOU WILL BE EXPRESSLY SIGNIFYING THAT YOU AGREE TO ALL THE FOLLOWING TERMS, CONDITIONS AND OTHER PROVISIONS, SET FORTH IN THIS AGREEMENT.
This Agreement was written in English. To the extent any translated version of this Agreement conflicts with the English version, the English version shall control.
Parties To This Agreement. The parties to this Agreement are You, a “User” of the Website, and Wayfarer Studios LLC, (hereinafter, the “Company”). As used in this Agreement, the terms “We”, “Us”, “Our” and variants thereof are used interchangeably to refer to the Company and variants of the word “You” (“Your”, etc.) are used interchangeably to refer to You.
“Affiliated Content Providers” shall mean persons and entities that make Content available at, in, on, though, from and/or, in association with, the Website or otherwise make Content available via participation in one or more programs provided by or in association with Company or via one or more Services provided by the Company.
“Audiovisual Work” shall have the same meaning as set forth in Section 101 of the United States Copyright Act.
“Content” shall mean text, photographic works, sound recordings, music, audio works, videos, Audiovisual Works, audiovisual combinations, haptic works, software, scripts, graphics, interactive features, and other materials that may accessed in, at, on, from, or through, the Website, or via the Service.
“Harmful Software” shall mean malicious or damaging code or software, spyware, computer viruses, Trojan Horses, worms, and any and all other devices that are designed or intended, in whole or in part, to disrupt, damage, limit, spy, or interfere with the proper functioning of any software, hardware, or telecommunications equipment or to obtain unauthorized access to any computer, server, digital storage device, or database.
“Indemnified Parties” shall mean the Company, the Company’s licensors, and the Company’s and the Company’s licensor’s respective directors, officers, members, principals, employees, contractors, suppliers, advertisers, affiliates, agents, attorneys, all Users, all authors, creators, and/or producers of, and all performers in or on Content provided to the Website by Users and other Affiliated Content Providers, and all of the foregoing parties’ respective, successors, successors in interest, heirs and assigns.
“Internet” shall mean a global network of interconnected computer networks, each using the Transmission Control Protocol/ Internet Protocol and/or such other standard network interconnection protocols as may be adopted from time to time, which is used (among other things) to transmit content between, or enable commercial transactions between, one or more websites and users thereof.
“Released Parties” shall mean the Company, the Company’s affiliates and each of their respective directors, officers, members, managers, principals, employees, contractors, suppliers, advertisers, affiliates, agents, attorneys, and all of the foregoing parties’ respective, successors, successors in interest, heirs and assigns.
“Service” and “Services” shall interchangeably mean one or more services provided by the Company to You in association with the use of the Website. All Services shall at all times be provided at Company’s election and some or all such Services may be suspended, terminated, added to, subtracted from, and/or otherwise modified at any time by Company at Company’s sole discretion.
“Service-Specific Terms” shall mean terms and conditions that are specific to Services, transactions, and/or other features provided by the Company. Service-Specific terms and conditions may be posted on the Website, for example, in association with specific features offered by the Company.
“Users” and “Website users” shall interchangeably mean users of the Website, including, without limitation, visitors, customers, Members, subscribers, advertisers, users of Services provided by the Company on, in, at or through the Website, and participants in programs and/or Services provided by the Company in association with the Website
“User In Good Standing” shall mean a User that is in compliance with all the terms and conditions set forth in this Agreement.
“Website” shall mean the website and forum known as “Wayfarer Studios” accessible at or through www.wayfarerstudios.com and any and all future versions thereof, including without limitation, versions owned and/or operated by one or more entities other than Wayfarer Studios LLC.
“Website Affiliates” shall mean persons and entities affiliated with the Website, including without limitation, persons participating in the Company’s program(s), advertisers on the Website, and parties providing traffic to the Website.
Additional Required Member Certifications. You hereby represent, agree, warrant, and certify:
– that You over the age of sixteen (16) years (use of this Website for persons under the age of sixteen (16) years is strictly forbidden);
– that if You are under the age of eighteen (18) years (but over the age of sixteen (16) years), You have the permission of a parent or guardian to access and use this Website and to use the computer(s) You use to access and use the Website;
– that You have chosen to access the Website and use the Service voluntarily for Your own personal enjoyment, information, entertainment and/or education;
– that You will not use the Website for any commercial purpose; and
– that You have not listed any email address provided to the Company and/or any Affiliated Content Producers that is included in, or which You or another party subsequently includes in, any “do not email” registry or similar service anywhere in the world, and will not do so in the future regarding any email address You provide to the Company and/or any Affiliated Content Producers.
Our Grant Of Limited License To You. You acknowledge and agree that all the materials Company makes available to You at or through the Website are proprietary and constitute valuable copyright, trademark and other intellectual property owned by others, including Company. In consideration of Your representations, warranties and acknowledgments in this Agreement, and conditioned upon the truth of Your affirmation that You are over the age of sixteen (16) years, the Company hereby grants You a limited and revocable single user non-exclusive license (i) to access its computer servers to use the Website for Your private non-commercial use only, and (ii) to use the Services normally accorded a visitor to the Website. You acknowledge and agree that the limited license above may be revoked, suspended, or terminated by the Company at its election at any time.
No Personal Information Regarding Any Person Under The Age Of Eighteen) Years. You agree that You will not at any time upload or otherwise provide any personal information regarding any person under the age of sixteen (16) years, including without limitation, any name, email address, mailing address, telephone number, social security number or other personally identifying information.
Important Website And Content Access And Use Restrictions.
All Content On The Website Is Proprietary. All photographs, videos, music, sound recordings, Audiovisual Works, software, text, images, graphics, user interfaces, trademarks, logos, artwork and other Content, including but not limited to the design, selection, arrangement, and coordination of such Content on the Website is owned by the Company or its licensors and is protected by copyright, trade dress, and trademark laws, and other intellectual property laws. Except as expressly provided in this Agreement or Service-Specific Terms, no part of the Website and no Content may be reproduced, recorded, broadcast, distributed, uploaded, posted, altered to make new works, performed, digitized, or transmitted in any way to any other computer, website or other medium, or used for any commercial purpose, without the prior written consent of the Company or the respective licensors of the Content. The Company and its licensors reserve all rights not expressly granted in and to the Service and the Content.
Personal Authorized Use Only. As a visitor to the Website You shall have a nontransferable, nonexclusive, non-sublicensable license to use the publicly accessible areas of the Website for personal use only. You may not use the Website, or any Content available in, at, on, through, from, or in association with, the Website, or any Service provided by the Company, for any commercial purpose whatsoever. You may not create derivative works of, or re-digitize, any such Content provided by the Company or Website, or use any such Content in conjunction or in combination with any third-party content (e.g., to provide an audio or visual component of an audiovisual work). You acknowledge and agree that no use of the Website or any Content associated therewith, no use of any Service provided by the Company, and no use of the Company’s trademarks, are permitted except as expressly authorized by this Agreement and/or Service-Specific Terms associated therewith. Without limiting any of the other indemnification provisions set forth in this Agreement, You agree that to the fullest extent permitted by applicable law, You shall fully indemnify all Indemnified Parties, including without limitation, the Company, and the Company’s licensors, for any and all failures by You to fully comply with terms set forth in this Paragraph.
No Downloading Unless A Downloading Option Is Provided. You agree that You will not download any Content from the Website or the Service unless the Company has provided You with the authorization and the means to download the Content by engaging a “download” button or similar link displayed in close association with the Content.
No Circumvention Of Content, Website or Service Security Features. You agree not to circumvent, disable or otherwise interfere with any security-related system, function or feature of the Website or Service, or any system, function or feature designed to prevent or restrict the use or copying of Content or otherwise effectuate one or more limitations on the use of the Website, the Service, and/or any Content associated therewith.
Use Only In Accordance With This Agreement Is Authorized. You acknowledge and agree that You may only access, view, listen to, download, and receive materials available at, in, or through the Website and/or one or more Services provided by the Company, including without limitation, Content provided by Affiliated Content Providers, only in accordance with this Agreement, Service-Specific Terms, and other applicable rules, notices and agreements posted on the Website, and their posted revisions, including, without limitation, specific terms and condition associated with the acquisition and use of Affiliated Content Provider’s Content.
Access By One Computer At A Time. You may access and use the Website only on one computer at a time and You may only make a single ephemeral copy of the parts of the Website You are currently visiting in the random access memory of Your computer.
Reproduction Or Publication Of Parts Of The Website Is Strictly Prohibited. Except for providing links to the Website and/or the URL locations of Content published on the Website, You may not re-publish or provide any parts of the Website or any of Affiliated Content Providers’ Content to any other person or entity without express prior written authorization by the Company. Such prohibited uses include, without limitation, transmission of the Website and/or Content associated therewith by emailing, phone messaging, or by any other means of publication or dissemination of reproductions of the Website or such Content, in whole or in part, including without limitation, via any web page, including without limitation, on any personal web page You may own or be affiliated with, including any Facebook page, any Google+ page, any Twitter page, or by the use of any other social networking sites, regardless of whether any of the aforementioned uses are commercial or non-commercial. You acknowledge and agree that any and all such unauthorized use by You shall constitute intentional and willful copyright infringement by You that could subject You to serious and substantial potential liability and monetary damages.
Your Use Of The Website And Services Shall Be Subject To All Applicable Laws And Regulations. You agree that Your use of the Website and all Services provided by the Company shall at all times be subject to, and in compliance with, all applicable local, state, national and international laws and regulations and that You shall at all times be solely responsible for all acts and omissions that occur by, or otherwise in association with, Your use of the Website. No software or any other Content available in, at, or through this Site may be uploaded, downloaded, imported, or exported in violation of any law including, without limitation, to countries that are subject to any governmental export restrictions.
Website and Service Content Is Licensed And Not Sold. Use of the Website, any Services, and the Content contained or otherwise associated therewith are subject to a limited license for Your use in accordance with this Agreement and applicable Service Specific Terms while You are a User in Good Standing, and such Content is not sold or assigned, notwithstanding use of any terms such as “sell,” “purchase,” “order,” or “buy” on the Website or in this Agreement. Any and all licenses granted to You to download Content from the Website are nonexclusive, nontransferable, and non-sublicensable.
Consequences Of Unauthorized Use Of The Website And/or Services. You hereby acknowledge that You understand, and that You hereby agree, that You must abide by these terms and conditions or any accessing or use of the Website and Service by You will not be authorized. The unauthorized accessing of the Company’s computers and databases in excess of the authorization expressly granted by the Company in this Agreement may violate state, federal and foreign laws, including, without limitation, The Electronic Communications Privacy Act, 18 U.S.C. SSSS 2701-2710, The Computer Fraud and Abuse Act, 18 U.S.C. SS 1030 and The California Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code SS502, and may constitute trespass to chattels, and intentional copyright infringement(s) of the Company’s and third-party’s copyrights under the laws of the United States and other countries. You further acknowledge that You understand that any such unauthorized access of the Website and/or Company Content or Affiliated Content Providers’ Content on the Company’s computers could subject You to potential criminal prosecution and substantial civil liability. For example, intentional infringement of the Company’s or a Member’s copyright in a single work could subject You to statutory damages of up to $150,000 per work infringed, or greater actual damages.
Compliance with Laws; Other Prohibited Activities.
You shall at all times comply with all applicable laws and You shall not use the Website or any Service provided by the Company to engage in any form of illegal conduct.
You shall not attempt to establish unauthorized hyperlinks to any password-protected parts of the Website or to any materials in, at, on, or associated with, the Website without express permission from the Company to do so.
You shall always use due care not to upload any viruses or other Harmful Software to the Website or use any Harmful Software in association with any Service provided by the Company.
For example, You agree that You will at all times take care not to upload any files (e.g., video files, text files, etc.) to the Company’s servers that contain any viruses, time bombs, cancel bots, worms, Trojan horses or any other Harmful Software. You also agree not to engage in any activity that interrupts or limits the functionality of any computer software, hardware or telecommunications equipment of the Company or the Website
You acknowledge and agree that all of the following activities are strictly prohibited. You may not attempt to or actually:
– access the Website or any Service provided by the Company by any means other than through the interfaces provided by the Company;
– engage in “framing,” “mirroring,” or otherwise simulation of any appearance, trade dress, or function of the Website or any Service provided by the Company;
– sell or license any Content available in, at, on or associated with the Website or any Service provided by the Company;
– reverse engineer, decompile or disassemble the source code for any underlying feature or function of the Website or any Service provided by the Company;
– create any derivative works based on the Website, or any intellectual property underlying or relating to any of the Services provided by the Company;
– use any bots or other automated methods to access, “spider”, “crawl” or otherwise acquire data in, on, at or from any web page on the Website or any Service provided by the Company.
– circumvent or override any security feature or functionality of the Website or any Service provided by the Company.
Termination of Access. You acknowledge and agree that We, in our sole discretion, may terminate or suspend Your access to all or part of the Website and/or all or part of the Services at any time, and that such termination(s) and suspension(s) may be temporary or permanent, and may be with or without notice, for any reason, including, without limitation, Your breach of this Agreement, or for no reason. Company also may also suspend and/or terminate the Website and/or any and all Services at any time.
Indemnification For Unauthorized Use Of Content, Website Or Other Proprietary Materials. You agree that You shall be personally liable for any and all breaches of this Agreement by You. To the fullest extent permitted by applicable law, You also agree to fully indemnify all the Indemnified Parties for any and all damages, costs, and expenses, including attorneys’ fees, directly, indirectly and/or consequentially resulting from (i) any breach of this Agreement by You, including from any breach of any warranty, covenant or obligation; (ii) any claims that You have infringed or violated any rights of any person or entity, including any copyrights, trademark rights, name, likeness or voice rights, privacy rights, and contract rights; (iii) any claims of liable, slander, defamation or false light, (iv) any violation of any regulation or law; (iv) any misrepresentation by You, or (v) any unauthorized use of the Website and/or any Service provided by the Company. The foregoing indemnification shall cover and apply to, without limitation, any and all damages resulting from any attempted or actual unauthorized, accessing, downloading, viewing, copying or distribution of the Website or any Content at, in, on or associated therewith, in whole or in part, by You, alone, or with, or under the authority of, any other person(s) or entity(ies).
Opt-out and Cancellation Provisions. At any time, You may opt out of future advertisement and promotional e-mailings and cancel Your receipt of e-mails, except for business communication and/or relationship emails, from the Company by clicking the unsubscribe link at the bottom of an e-mail advertisement sent to You by the Company or by sending an e-mail cancellation request to email@example.com . Notwithstanding the foregoing, You agree that the Company may at all times, to the fullest extent of the law, continue to communicate with You by email regarding any and all business transactions You have entered into with the Company.
No Actions Resulting From Registration In “No Contact” Registries. You hereby agree that You will not bring any action against Company, any Affiliated Content Providers, any of the Company’s affiliates, or any of any of the aforementioned parties’ principals, employees or agents, as a direct or indirect consequence of Your registration of an email address, mailing address, telephone number or other contact point with any governmental “do not email” registry with respect to any such contact point You have provided to the Company and/or one or more Affiliated Content Providers after indicating that You have given the Company and/or such Affiliated Content Providers permission to send You email. You agree to indemnify the Company and all other Indemnified Parties for, from and against any and all expenses and damages, including any and all fines, penalties and attorney’s fees that result from, arise under, or are otherwise related to, any breaches of Your obligations in this Paragraph and for any actions against Company and/or any other Indemnified Parties that result from any party sending You email that You have requested or authorized the Company, its affiliates and/or one or more Affiliated Content Providers to send You.
Links To Third-Party Websites. You acknowledge and agree that links on the Website to external websites with or without related third-party company logos shall not be deemed to constitute endorsement by Company of the opinions or views expressed at such linked websites (“External Websites”) or by such third-party companies. We have no editorial control or supervision over selection or display of such content provided by such third-parties or such third-party Websites and such third-parties are solely responsible and liable for all such content. Company does not verify, endorse, or take responsibility for the accuracy, currency, completeness or quality of the content contained in, at, on or available through any External Website. Furthermore, Company shall not be responsible for the quality or delivery of the products or services offered by, accessed at, or advertised in any External Website. As such, neither Company nor its subsidiaries or affiliates shall be responsible for any errors or omissions or for the results obtained from the use of content or other information contained in, at, on or available through any External Website. To the extent that an External Website collects personal information or postings from the end users, be advised that in no event shall Company assume or have any responsibility or liability for the manner in which such information or postings are exploited or for any claims, damages, or losses resulting from their use and/or appearance at, in, on, through or in association with any External Website. You acknowledge and agree that Company shall not, under any circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information, content, products or services contained in, at, on or available through, any External Website.
Communication With Advertisers. Users may from time to time enter into correspondence with, or participate in the promotions of, advertisers or providers of third-party services through, or in association with, the Website. All such correspondence, including, without limitation, any resulting contractual agreements, shall solely be between the advertiser and/or third-party provider and the User. You expressly acknowledge and agree that the Company shall not be responsible for any representations by any such advertisers or third-party providers for upholding any applicable terms, conditions, or warranties made by the advertiser or third-party provider in connection therewith. You acknowledge and understand that We do not screen, endorse, monitor, control, investigate, supervise or verify any advertisements or promotional material submitted or otherwise provided by third parties for publication via the Website and/or Service, nor make any claims or take on any duty regarding the accuracy or reliability of any such advertisements. The Company is neither an author nor editor of any of the materials uploaded, posted or otherwise made available via the Website by any advertiser or other any third-party. You are therefore cautioned and advised to use Your own judgment to evaluate all advertisements and other communications available at or through the use of the Website prior to responding thereto or purchasing goods and/or services described at the Website.
Release Of Company From Liability Regarding Content. You hereby release Company and all other Indemnified Parties from any and all liability and responsibility in connection with the Content and all other information, messages, communication and other materials You receive or may receive from the Company, Affiliated Content Providers, the Company’s other affiliates, or advertisers, and You promise never to bring any action, claim or initiate any dispute of any kind regarding any such Content or other information, messages, communication and/or other materials that are directly or indirectly transmitted, posted, provided or otherwise made available to You in, at, on, through, or in association with, the Website or any Service provided to You by the Company.
No Representation, Guarantee Or Warranty That Website Or Content Associated Therewith Is Free Of Harmful Or Malicious Code. You understand that the Company does not represent, guarantee or warrant that either the Website or any Content or any other files You may access at, in or through, or download from, the Website, any Service provided by the Company, and/or any affiliated website, will be free of viruses, worms, Trojan horses, code that may manifest contaminating or destructive properties or any other Harmful Software. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for accuracy of data input and output, protection of Your computer(s) and for maintaining a means of reconstructing data that You might lose because of exposure to, or damage caused by, Harmful Software. The Company does not assume any responsibility or risk associated with the possibility of damage to Your computer(s) or any other devices, or any damage to your information through Your use of the Website, and/or Content or other materials You may obtain in association therewith or in association with, or through, any Service provided by the Company or its affiliates.
Your Use Of The Website And All Services Provided By Company Is At Your Own Risk. You hereby agree that the use of the Website and Service, including without limitation, all materials, features, functions and all other goods and Services provided to You by the Company, and the use of any and all Content provided by the Company, Members, advertisers, and others on, in, at, through, from, or in association with, the Website are provided to You on an “as is” basis, without warranties of any kind, including, without limitation, warranties regarding the availability, accuracy, or content of materials, information, product or Services, or warranties of merchantability, fitness for a particular purpose, title or non-infringement, and Company expressly disclaims all such warranties. Company does not warrant that the functions of the Website or the providing of any Content will be uninterrupted or error-free, or that any discovered defects will be corrected. You expressly agree that under no circumstances and under no cause of action or legal theory, shall Company, or any of the Company’s affiliates, be liable to You or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages resulting from Harmful Software or materials, or communications by Company, You, or other Users of the Website, or from any use of any Content, the Website or Services provided by the Company. This disclaimer of warranty constitutes an essential part of this Agreement. Some states and countries do not allow exclusions of an implied warranty. Regardless of whether such limitation or other limitation of the scope of this limitation of liability or other limitation of liability set forth in this Agreement is ultimately determined to apply to You, You acknowledge and agree that it is the express intent of the Parties hereto that the limitations of liability set forth in this Paragraph and elsewhere in this Agreement shall be construed as broadly as is permissible under applicable law and that the Parties shall do any and all things reasonably necessary to ensure that the limitations of liability set forth in this Paragraph and elsewhere in this Agreement are valid, effective and applicable as intended, including, without limitation, if necessary, to change the applicable choice of laws applicable for dispute resolution regarding matters involving Company’s liability to an applicable choice of laws that does not limit the applicability of the terms set forth in this Paragraph and other limitations of liability set forth elsewhere in this Agreement.
Limit Of Company’s Liability.
Liquidated Damages. Notwithstanding the limitations of liability above, You also agree that as a material condition to Your obtaining the license to access and use the Website, and to receive any Services from the Company, You agree that any and all liability that might be attributable to the Company, its officers, employees, independent contractors, advertisers, affiliates, suppliers, agents and attorneys, and their successors and assigns that directly or indirectly results from, arises under, or is otherwise related to, Your use of the Website, and/or any Services provided by the Company, including, without limitation, any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, alteration of, or use of Content, records and/or communications, whether for breach of contract, negligence, infringement of intellectual property rights, or under any other cause or action, shall be strictly limited to Twenty Dollars ($20.00). Some states and some countries do not allow the limitation or exclusion of liability for incidental or consequential damages and/or liquidated damages. Regardless of whether such limitation or other limitation of the scope of this limitation of liability or other limitation of liability set forth in this Agreement should apply to You, You acknowledge and agree that it is the express intent of the Parties hereto that the limitations of liability set forth in this Paragraph and elsewhere in this Agreement shall be construed to be as broad as is permissible under applicable law. You further acknowledge and agree that the Parties shall do any and all things reasonably required to ensure that the limitations of Company’s liability and the liquidated damages provisions set forth in this Paragraph and elsewhere in this Agreement are valid, effective and applicable as intended, including, without limitation, if necessary, to change the applicable choice of laws applicable for dispute resolution regarding matters involving damages to laws that do not limit the applicability of the terms set forth in this Paragraph limiting Company’s liability.
NO INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES TO YOU OR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF ANY OF THE SERVICES PROVIDED BY COMPANY AND/OR ITS AGENTS, AND/OR THE USE OF SOFTWARE OR HARDWARE, EVEN IF COMPANY HAS BEEN ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE FOREGOING SENTENCE REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC AND OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION.
IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE WEBSITE MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL TO US, SERVICE, OR TECHNOLOGY.
Liability Waiver and Release. To the maximum extent permitted by law, You hereby expressly and knowingly release and hold harmless the Company, the Company’s licensors, and the Company’s and the Company’s licensor’s respective directors, officers, members, principals, employees, contractors, suppliers, advertisers, affiliates, agents, attorneys, and all of the foregoing parties’ respective, successors, successors in interest, heirs and assigns (“Released Parties”) from any and all responsibility and liability, including, without limitation, any and all responsibility and liability for any injuries, losses, or damages of any kind, including compensatory, direct, incidental, consequential, punitive, and or other arising out of, relating to, or associated with Your use of the Website and any and all other Services provided to You by the Company, including with limitation by reason of negligence, human or technical error, any actions of any third-party, including, without limitation, any governmental entity, any and all occurrences of one or more Force Majeure events, and any and all cancellations, terminations, suspensions or material modifications of the operation of the services provided by the Company, and/or the Website in whole or in part. You further expressly and knowingly release and discharge the Released Parties from all actions, causes of action, suits, debts, agreements, promises, liabilities, demands, damages, losses and claims, known and unknown, of any and every kind whatsoever that You may have or may ever claim to have. You further expressly and knowingly agree that neither You nor any successor or assign will initiate any legal action of any kind against any Released Party regarding any type of loss or injury You might suffer if that loss or injury arises out of, relates to, or is in any way associated with, the Website or any Service provided to You by Company, including, without limitation, the Member-Generated Content Service. You expressly agree that if any party initiates any such legal action on behalf of You or any party initiates such legal action on behalf of itself because the party has acquired a right to bring such action from You, You shall be liable for, and pay for, any and all damages, losses, liabilities, costs, penalties, and expenses, including without limitation attorneys’ and experts’ fees and costs, incurred in connection with such action. You knowingly and expressly acknowledge and agree that the waivers and release of liability, and the promise not to bring any action against any Released Party set forth in this Paragraph are material inducements for Company to provide You with the opportunity to access and use the Website, and to enter into this Agreement, and, but for such material inducements, Company would not have extended such offer to You or entered into this Agreement with You.
Waiver of Section 1542. With respect to the several releases of liability set forth in this Agreement, You hereby acknowledge that You have been advised by Your independent counsel or You otherwise understand the consequences of entering into the general release and discharge of all known and unknown Claims as set forth in this Agreement, and that You are familiar with the provisions of Section 1542 of the California Code, which currently provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
You hereby expressly waive any and all rights under Section 1542 and under any other federal or state statutes or laws of similar effect. Notwithstanding the foregoing, however, nothing herein shall be construed or operate to limit any obligation, duty, warranty or other responsibility set forth in this Agreement, in any way.
Cooperation With Law Enforcement. The Company independently reserves the right to fully cooperate with any and all law enforcement authorities and all court orders requesting or directing Company to disclose the identity or other information regarding any person who is using or has used the Website, any Service provided by the Company or its affiliates, or has obtained any Content available on, in, at, through, or in association with, Website. By accepting this Agreement and using the Website, or receiving any Services from the Company, You waive and hold harmless Company, its principals (including, its directors and officers), employees, agents and attorneys from any and all claims resulting from, arising under or related to, any law enforcement authority’s investigations.
Arbitration. Any and all disputes or controversies of any kind, including but not limited to any performance, duty, obligation or liability arising under or related to this Agreement which are not first resolved informally by good faith attempts by the Parties after thirty (30) days, shall be referred to and determined by binding arbitration in Los Angeles, California, in accordance with the Commercial Rules of the American Arbitration Association. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of California and the United States of America. Notwithstanding the foregoing, any and all disputes, which the Parties cannot informally resolve, regarding the scope of issues or matter within the jurisdiction of the arbitrator, shall be resolved by a separate dispute resolution process whereby the Company in the Company’s sole discretion shall elect the dispute to be resolved by either (1) a municipal or superior court of competent jurisdiction in Los Angeles, California or (2) a panel of three (3) new arbitrators.
Choice of Law. You agree that this Agreement and all disputes or controversies of any kind arising out of, arising under, or related to this Agreement, and/or arising out of, or arising under, or related to, any of the Services provided by the Company, or to any features or functions available on, in, at, through, or in association with, or in any other way relating to, the Website, any or all Services provided by the Company, and/or any Content provided by the Company, by any Members, or by any other Users of the Website or by any Affiliated Content Providers, shall all be governed by and construed under the laws of the State of California and the United States, as applied to agreements between California state residents entered into and to be performed within the State of California, except as governed by Federal law. The choice of law provisions shall apply regardless of Your country of origin or from where You access the Website and/or one or more Services provided by Company, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. You further agree that notwithstanding any judicially or statutorily created choice of law rule that would otherwise require the application of the law of some other jurisdiction, all provisions of this Agreement and all matters or controversies of any kind arising out of, or related to this Agreement or the rights or liabilities of the Parties hereto shall be governed solely by the substantive statutory and common law of the state of California.
Venue and Jurisdiction. You and the Company hereby agree that the venue for all legal disputes, controversies, and actions of any and every kind arising under or related to this Agreement shall be Los Angeles, California. Further, You and Company agree that in case of any litigation requiring or involving any filing of a lawsuit with a court, such litigation shall be, depending on the subject matter of the dispute, under the jurisdiction of either the Municipal Court of Los Angeles, California, the Superior Court of the County of Los Angeles or the United States District Court for the Central District of California, Western Division. You hereby consent and stipulate to the jurisdiction of the Courts of the State of California and the United States District Court, Central District of California, Western Division.
Time Limitation. You expressly acknowledge and agree that, notwithstanding any statute or law to the contrary, any and all claims and causes of action against Company or any of the other Released Parties arising out of, arising under, or related to, this Agreement must be filed within one (1) year after such claim or cause of action first arises or such claim or cause of action shall be forever barred. Notwithstanding the foregoing, You expressly acknowledge and agree that the aforesaid time limitation shall not apply to any claims or causes of action that the Company and/or any of the Released Parties may have against You, including any claims or causes of action arising from any breach of warranty or other obligation set forth in this Agreement, or any related Agreement (e.g., a Member Content Uploading And License Of Rights Agreement), by You.
Preservation Of Parties’ Intent Regarding Liability Limitations And Liquidated Damages. Notwithstanding the foregoing, if the laws of the chosen jurisdiction set forth in this Agreement materially limits or precludes the application of the limitation of liability and/or liquidated damages provisions set forth above, or would, or would likely, impose such limitation bilaterally upon both You and the Company, notwithstanding the choice of laws and jurisdiction provisions set forth above, You and Company expressly agree that either You or Company shall have the right to change the jurisdiction(s) and the choice of laws provisions of this Agreement, with respect to issues pertaining to the applicability of the liquidated damages provisions and other provisions limiting the Company’s liability set forth in this Agreement, to a jurisdiction in which there is no law or limitation that materially limits or precludes, jointly or independently, the application of the such provisions as they apply to limit Company’s liability only.
Unenforceability Of Provisions. You and Company agree that if any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and all other portions of this Agreement shall remain in full force and effect (i.e., if any part of this Agreement is unlawful, void or otherwise unenforceable, only that part will be deemed severable and severed, and such severance shall not affect the validity and enforceability of any and all the remaining provisions).
Non-Waiver. You acknowledge and agree that the failure of the Company or its affiliates or any Affiliated Content Providers, or any of the foregoing parties’ assignees or successors, to enforce any of the specific provisions of this Agreement shall not comprise a waiver of, or preclude or prevent any later, further, or other, enforcement of such provision(s), or any other provision(s), and shall not waive, preclude, prevent or diminish the exercise of any other right hereunder.
No Joint Or Collaborative Venture. Nothing in this Agreement is intended by the Company or You to create or constitute a joint or collaborative venture or partnership of any kind between You and the Company, nor shall anything in this Agreement be construed as constituting or creating any agency, employment relationship, joint or collaborative venture or partnership between You and Company or any of Company’s employees, agents, contractors, affiliates or assigns.
Authority To Enter Into Agreement. You hereby acknowledge and represent that You are duly authorized and have full authority to enter into this Agreement on behalf of Yourself.
Affirmation Of Agreement; Acknowledge You Have Read This Entire Agreement. By continuing to access the Website, by receiving any Service from the Company and/or by using any feature or functionality available in, at, on, through, or associated with, the Website and/or any Service provided by the Company, or by participating in any way, as a User of the Website, You expressly agree that You will be expressly acknowledging and affirming that You have read this entire Agreement and that You understand, and fully and irrevocably agree to, all its terms, conditions, warranties and other provisions. You further agree that Your acknowledgment and agreement to the entirety of this Agreement is reaffirmed by You each time You upload or otherwise provide any Content to the Website, and/or receive or otherwise use any Service provided by the Company.
Mutually Drafted; Negotiation Option; Not A Contract Of Adhesion. For purposes of construction and interpretation of this Agreement, both You and the Company shall be deemed to have mutually drafted this Agreement and all parts thereof. If You would like to negotiate other terms or propose any modifications of this Agreement before providing Your assent and agreement, please contact the Company at firstname.lastname@example.org. You hereby expressly acknowledge that Company has provided You with an opportunity to propose modifications to this Agreement. You also hereby expressly acknowledge and agree that this Agreement is not a contract of adhesion and that as a material inducement for Company to enter into this Agreement with You, You hereby agree that You will not make any claim or support any action on the claim that this Agreement constitutes, in whole or in part, a contract of adhesion or is unfair or unconscionable in any way.
Review By Your Attorney. This is a legal contract. Like all legal contracts, You are advised to procure appropriate legal advice before entering into this Agreement. Company strongly suggests that You review this Agreement with Your attorney prior to its execution if You have not already done so. You acknowledge and agree that Company did not pressure You or otherwise require You to enter into this Agreement without having sufficient time and opportunity to consult with an attorney of Your choosing. You acknowledge and agree that nothing herein and no statement by the Company or any of Company’s principals, officers, directors, shareholders, employees, representatives, agents, attorneys, affiliates, assigns or successors or any other person associated with Company has in any way prevented or inhibited You in any way from freely seeking such legal advice prior to Your entering into this Agreement. You hereby acknowledge and agree that You are not, and at no time were, under any time constraint imposed by the Company to agree to this Agreement or to receive any service from the Company or participate in any program offered by the Company, use any part of the Website or engage in any activity associated with the Website, and You acknowledge that You may forego such participation without any obligation or sanction for having done so by not entering into this Agreement. You acknowledge and agree that nothing prevents You from leaving the Website and seeking counsel to review this Agreement and assist You prior to Your agreement hereto. You hereby acknowledge and agree that the terms of this Agreement are reasonable and fair, and that all terms have been fully disclosed in writing. You acknowledge that You have either had competent counsel review this Agreement and provide You with legal consultation regarding it and all transactions that might be associated herewith or You have knowingly and voluntarily decided not to do so. If You have elected not to have an attorney review this Agreement and advise You regarding it, You expressly agree and warrant that You shall not at any time (i) raise the fact that You have not had an attorney review this Agreement or (ii) claim the You were not provided a fair and reasonable opportunity to have an attorney review this Agreement and advise You regarding the matters set forth herein before You entered into this Agreement and assented to all its provisions.
Paragraph Headings. Paragraph and subparagraph headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
English. You hereby acknowledge and affirm that You are sufficiently fluent in the English language to fully understand all the provisions of this Agreement. The Parties agree that in the event that this Agreement is translated for any reason, in the event of any ambiguities or disputes resulting from such translation(s), the English version of this Agreement shall control and govern in all situations.
No Contest Of Validity Of This Agreement. As a material condition for Your authorized use of the Website and/or receipt of Services, You agree that You will not contest the validity or enforceability of this Agreement or any Service-Specific Terms on the ground that Your acceptance was not unequivocally and knowingly provided by Your providing Your acceptance by and method set forth herein, including, without limitation, by Your use of the Website and/or Your engaging any button, hyperlink or similar feature reasonably signifying Your acceptance of this Agreement by engagement of such feature.
Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the Parties hereto, and their respective successors and assigns.
YOU HEREBY ACKNOWLEDGE THAT YOU BY CONTINUED USE OF THE WEBSITE AND/OR RECEIPT OF ANY SERVICE FROM THE COMPANY THAT YOU HAVE READ THIS AGREEMENT COMPRISING IN ITS ENTIRETY, THAT YOU FULLY UNDERSTAND AND AGREE TO ALL ITS TERMS.
Also agreed to in full by Wayfarer Studios LLC.
Last Updated: September 30, 2020