(Last Revision Date: October 7, 2013)
About Stage 32® Happy Writers
Stage 32, LLC, the operator of Stage 32® ("Company", "Us", etc.) welcomes you ("You") to Stage 32® Happy Writers. Stage 32® Happy Writers is a writer's social networking resource and online meeting service for entertainment business professionals.
Agreement
Your agreement to all the terms and conditions of this agreement ("Agreement") is required before You can use the Stage 32 Happy Writers service.
IT IS VERY IMPORTANT THAT YOU READ THIS AGREEMENT BECAUSE IT SETS FORTH THE TERMS AND CONDITIONS OF USE OF THE SERVICE AND THE GUIDELINES YOU WILL BE EXPECTED TO COMPLY WITH DURING THE SESSION. BY YOUR PURCHASE OF A SESSION AND USE OF THE SERVICE YOU WILL BE EXPRESSLY SIGNIFYING THAT YOU AGREE TO ALL THE FOLLOWING TERMS, CONDITIONS AND OTHER PROVISIONS SET FORTH IN THIS AGREEMENT.
Parties To This Agreement. The parties to this Agreement are the Pitch Session purchaser ("You") and Stage 32, 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.
Acceptance. By clicking the button marked "I understand and agree to all of the above," by purchasing a pitch session, by uploading any content of any kind to the Website, or by otherwise accessing or using any of the Services provided by the Company, You hereby agree to be bound by all the terms and conditions set forth in this Agreement, including without limitation, Our Privacy Policy, which is incorporated herein by reference, and by all other rules, regulations, notices and agreements posted in or on the Website or otherwise provided to You.
Therefore, for good and valuable consideration, the amount, sufficiency, and receipt of which is hereby acknowledged by You and the Company (jointly referred to as "Parties"), the Parties hereby agree to all of the preceding and all the following:
1. Definitions
1.1 "Indemnified Parties" shall mean the Company, the Company's licensors (including without limitation, Black and Blue, LLC), and the Company's and the Company's licensor's respective directors, officers, members, principals, employees, contractors, suppliers, advertisers, affiliates, agents, attorneys, members, and users, and all of the foregoing parties' respective, successors, successors in interest, heirs and assigns.
1.2 "Moderator" shall mean Erik Grossman or another representative of The Happy Writers™ or the Company.
1.3 "Pro" shall mean the entertainment industry executive, manager or agent to whom You provide Your pitch.
1.4 "Released Parties" shall mean the Company, the Company's licensors (including, without limitation Black and Blue, LLC), 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, including without limitation the Moderator.
1.5 "Session" shall mean an Online Pitching session via Skype® or other videoconferencing means, a written session, or another means of providing an opportunity for You to make a pitch to a Pro.
1.6 "Service" and "Services" shall interchangeably mean the services provided to You that are described in Paragraph 2.1 below, and any other services provided by the Company to You in association with Your use of Stage 32® Happy Writers. Without limiting the foregoing, the terms "Service" and "Services" shall include all aspects of the Stage 32® Happy Writers service, including but not limited to, the Session, and any and all products, software and services offered by the Company in association with the Stage 32® Happy Writers service therewith.
1.7 "Website" or “Site” shall mean the website and forum known as "Stage 32®" accessible at or through www.stage32.com and any and all future versions thereof, including without limitation, versions that may be owned and/or operated by one or more entities other than Stage 32, LLC.
2. Our Grant Of Limited License To You To Use Website And Service Content. You acknowledge and agree that all the materials Company makes available to You at or through the Service and/or the Website are proprietary and constitute valuable copyright, trademark and other intellectual property owned by the Company or others. In consideration of Your purchase of a Session and Your representations, warranties and acknowledgments in this Agreement, the Company hereby grants You a limited and revocable single user non-exclusive license to access its computer servers to use the Service for Your private use only.
2.1 You understand and agree that the Company is only providing you with the following limited services:
2.1.1 An opportunity to video conference with the Moderator and the Pro;
2.1.2 Access to the information provided by the Moderator and the Pro; and
2.1.3 A video conference Session of no more than eight (8) minutes with the Moderator and the Pro.
2.2 You understand and agree the above are the only Services the Company is obligated to provide to You. You acknowledge and agree that Company shall at no time be responsible or liable in any way regarding any communication or content provided to You by the Moderator or the Pro. You acknowledge and agree that the Pro and the Moderator are independent parties and the Company does not endorse or control what is said, offered, promised or otherwise communicated by the Pro or the Moderator.
2.3 The Pro may require You to execute an agreement limiting the Pro’s liability associated with (i) Your providing Your pitch to the Pro, (ii) materials You submit to the Pro (e.g., a script), and/or (iii) other matters pertaining to the Session or the subject of Your pitch. You acknowledge and agree that if You elect not to execute such agreement presented by the Pro (which may be forwarded to You by Company), the Pro may, at the Pro’s discretion, elect not to participate in the Session. You acknowledge and agree that if the Pro elects not to participate in the Session because of Your decision not to execute the aforementioned agreement provided by the Pro, or for any other reason, the Session may be cancelled without Company liability of any kind. The Company may, at its discretion, however, issue You a refund of the Session fee paid by You or provide You with credit that may be used to pay for a future Session.
3. Important Use Restrictions.
3.1 Personal Authorized Use Only. You shall have a nontransferable, nonexclusive, non-sublicensable license to use the Service for personal use only. You may not use the Service for any commercial purpose whatsoever.
3.2 Service Is Provided "As Is". The Service is provided to You AS IS.
3.3 No Recording Of The Session Or Circumvention Of Content, Website or Service Security Features. You agree not to record the Session or circumvent, disable or otherwise interfere with any security-related system, function or feature of the Service or Website, or any system, function or feature designed to prevent or restrict the use or copying of the Session or any content associated with the Session, or designed to otherwise effectuate one or more limitations on the use of the Website, the Service, and/or any content associated therewith.
3.4 Company And Company's Licensors Shall Not Be Responsible For Statements Or Representations Made By The Pro or the Moderator. You understand and agree that when You are using Service, You will be exposed to comments, criticism and other communications from the Pro and the Moderator. You acknowledge that all communications by the Pro and Moderator are not the opinions of, or any kind of explicit or implicit communications from, or by, the Company or any of its agents. You expressly agree that neither the Company nor any of its licensors or other Released Parties shall be held responsible or liable in any way for any of the opinions, commentary, advice, other communications, or other actions or omissions by the Pro or the Moderator, or any subsequent actions or inactions of any kind by the Pro and/or the Moderator, or any person or entity under their respective control, at any time in the future. You further understand and acknowledge that You may be exposed to information that is inaccurate, offensive, indecent, and/or objectionable to You. You expressly agree to waive and hold harmless, and hereby do waive and hold harmless the Company and all other Released Parties, and You expressly waive, and agree not to assert, any and all legal and equitable rights and remedies You have or may acquire in the future against the Company and/or any other Released Parties, in regard to actions, omissions, inactions and communications by the Pro and/or Moderator, and persons and entities under their respective control to the fullest extent permitted by applicable law. You further expressly agree not to ever bring any legal action of any kind against the Company and/or any other Released Parties for any reason arising from, arising under, or otherwise related to the Service in any way, and You further agree to fully indemnify and hold harmless all Indemnified Parties to the fullest extent allowed by law regarding all matters related in any way to Your use of the Website, the Service and Content directly or indirectly related thereto. Without limiting the foregoing, and for purposes of clarity, You expressly agree that should any dispute ever occur between You and the Pro regarding the content of Your pitch or any other content shared with the Pro, You expressly agree not to bring any action of any kind against the Company and/or any other Released Party or otherwise involve the Company and/or any other Released Party in any way.
3.5 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 Service in accordance with this Agreement and their posted revisions.
3.6 Access By One Computer At A Time. You may access and use the Service on one computer at a time.
3.7 Reproduction Or Publication Of The Session Or Any Communications With You Through The Use Of the Service Is Strictly Prohibited. You may not re-publish or provide any parts of the Session, any communication with the Pro through or using the Service, or any content associated with the Service to any other person or entity without express prior written authorization by the Company. Such prohibited uses include, without limitation, transmission of the Session and/or any communication or content associated therewith by emailing, phone messaging, or by any other means of publication or dissemination on any personal web page You may own, control (in whole or in part), or be affiliated with, including without limitation, any FaceBook® page, any Google+® page, any MySpace® page, any Twitter® account, or by any other means afforded by any social networking sites, regardless of whether any of the aforementioned uses or means 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.
3.8 Your Use Of The Service Shall Be Subject To All Applicable Laws And Regulations. You agree that Your use of the Service 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 under, or otherwise in association with, Your use of the Service.
3.9 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 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.
4. Use Of The Service.
4.1 You Are Solely Responsible For All Communications Through Your Use Of The Service. You shall, at all times, be solely responsible for all of Your communications and content You make through, and otherwise in association with, the Service, including without limitation such communications and content You otherwise provide to the Pro, the Moderator, the Service, including without limitation, any and all chat text and other communications through the Service. Without limiting the other indemnification provisions in this Agreement, You agree to hold harmless, not sue or bring any action against, and fully indemnify, all of the Released Parties for, and in regard to, any and all damages, and for all other consequences resulting in any way from Your communications and/or providing of content through or otherwise in association with the use of the Service.
4.2 Company Is Not Responsible For Communications By The Pro, The Moderator Or Any Other Person. You acknowledge and agree that Company is not, and shall not be held, responsible or liable for the quality, legality, or any other matter regarding, any communication that is directly or indirectly transmitted, posted, provided or otherwise made available to You by or through the Service. You further expressly acknowledge that We do not guarantee or vouch for the accuracy or truthfulness of any messages, communication, information or content of any kind transmitted or otherwise provided by the Pro, the Moderator or any other person by, through, or in association with Service.
4.3 Prohibited Uses Of The Service. You agree that all of the following are prohibited uses of the Service:
4.3.1 using the Service in any manner that violates any law or regulation;
4.3.2. using the Service in any manner that infringes or will likely result in the infringement of any person's or entity's intellectual property rights, including, without limitation, any person's or entity's copyrights, trademark rights, trade secret rights, patent rights, rights pertaining to the use of name, likeness, voice or persona, or moral rights;
4.3.3 using the Service in any manner that infringes or violates, or will likely result in the infringement or violation of, any person's or entity's other property rights, privacy rights, or contractual rights;
4.3.4 using the Service to duplicate, perform, distribute, publish, transmit, create derivative works of, or otherwise use, any content or any other materials regarding which You do not own all necessary rights to do so;
4.4.5 making or providing any misrepresentation regarding the ownership, source, character or description of any of Your content or any other materials or information You provide through the direct or indirect use of the Service;
4.4.6 using the Service in bad faith for any purpose not contemplated by the purpose of the Service, including, without limitation, any purpose other than to provide a pitch to the Pro to receive responsive commentary from the Pro; and
4.4.7 using the Service if You are under the age of eighteen (18) years.
You expressly acknowledge and agree that any use of the Service by a person under the age of 18 years will constitute unauthorized access to the Service and the Company's, Moderator's and Pro's computers.
4.5 Stage 32® Happy Writers Guidelines. You agree to use the Service in accordance with the following guidelines:
(i) You shall at all times act professionally and be courteous, and You shall not use the Service to engage in any harassing, abusive, disruptive or offensive behavior, or engage in any communication that is libelous, slanderous, abusive, defamatory, racist, obscene or offensive. If You are unprofessional, discourteous or harass the Pro or the Moderator, the Pro, the Moderator and/or the Company may terminate the Session and You may be immediately disqualified from any further use of the Service.
(II) You shall not use the Service in any manner that infringes, misappropriates or otherwise violates any person's or entity's rights.
(III) You shall only provide truthful and accurate information about Yourself to the Company, the Pro and the Moderator.
(IV) You shall not impersonate, or falsely claim an affiliation with, any person or entity.
(V) You shall not use the Service for any commercial purpose.
(VI) You shall not try to contact the Pro after the Session UNLESS you are specifically asked to.
(VII)You shall not ask any Pro if they want to read your script after the Session. After all the Sessions scheduled for the Pro for the event for which Your Session is scheduled are completed, the Pro will inform the Company as to which script(s) or other materials provided by You that they want to read, if any. If Your script or other submitted material is selected by the Pro, the Company will contact You and ask that You forward the subject script or other material to Us.
You expressly acknowledge and agree that any and all scripts and other materials provided to the Company for transmission to the Pro shall not in any manner limit Your releases and indemnifications set forth in this Agreement. You acknowledge that this means that Your agreement to hold harmless the Company and all other Released Parties and to indemnify the Company and all the other Indemnified Parties from and against any and all claims shall apply to all matters regarding Your script and/or other materials You provide.
(VIII) Each Session must be strictly kept to a maximum of 8 minutes. Company shall set appointments in 10 minute increments, thus, after 8 minutes, no matter where You are in your pitch, the Session must end. Please allow 5-10 minutes after your allotted time in case of any unforeseen conflicts.
(IX) These virtual pitches will be effectuated via Skype® or another videoconferencing service or licensed technology.
4.6 Limited License To Use Your Session. You hereby grant to the Company and its Stage 32® trademark licensor (Black and Blue, LLC), a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license ("Transmission License") and You hereby grant permission and authorization to such parties, to broadcast, stream and transmit to the Session participants (including without limitation, You, the Pro, and the Moderator), and to such other persons designated by the Company for technical support and quality control, by any and all means now known or hereinafter invented, all of the Session, including without limitation, all of Your participation in the Session, including without limitation, Your name, likeness and voice depicted or otherwise included in, or associated with, the Session and/or any other uses of the Service (collectively “Transmission Rights”). You acknowledge and agree that the Transmission Rights include, without limitation, the grant of all rights required for the Company and its designees to make ephemeral audio and video recordings of You and Your participation in the Session as is necessary or convenient to effectuate the transmission of the Session to the Session participants, to enable the Company to provide technical support, and for Service quality evaluation and control. The Company will not store or reproduce any audio or video recording of Your participation in the Session except as is required or convenient to effectuate the transmission of the Session to the Session participants as contemplated by the Transmission License and as otherwise contemplated by this Paragraph. Without limiting the foregoing, You hereby also authorize the Company to create ephemeral and non-ephemeral recordings of the Session solely for the purposes of Company training of Service staff and for quality evaluation and control of Services.
4.7 Release And Indemnification Regarding Use Of The Service. You hereby expressly agree that You agree to hold harmless, never bring any action of any kind against any Released Party in regard to any and all claims, damages and costs of any and every kind, including without limitation, attorneys fees, resulting from, arising from, arising under, or otherwise related in any way to, (i) the Session, (ii) any of Your use of the Service, (iii) any use of Your content, (iv) any of Your use of the Website, and/or (v) any breach of any of Your warranties and/or obligations set forth in this Agreement, including without limitation, any and all other claims by any person(s) and/or entity(ies) against any of the Released Parties directly or indirectly regarding any content that You disclose or otherwise provide to the Pro and/or the Moderator, upload to the Website, and/or provide to the Company and/or any of its agents or affiliates. You acknowledge and agree that the obligations set forth above shall also apply to any and all claims, damages and costs of any and every kind resulting from or otherwise arising under or related to any breach of warranty or other obligation set forth in any other agreement You enter into with the Company, including, without limitation any Stage 32® Member Content Uploading and License of Rights Agreement You enter into. You further hereby expressly agree that You will fully indemnify all Indemnified Parties in regard to all damages, expenses and costs of any and every kind, including attorneys fees, resulting from, arising from, arising under, or otherwise related to the Session, Your use of the Service, any use of Your content, and/or any breach of any of Your warranties and/or other obligations set forth in this Agreement.
4.8 No Company Obligation To Monitor Any Session. You expressly acknowledge and expressly agree that the Company and its agents have very limited practical ability to monitor the Session or any communications by You, the Pro or the Moderator using the Service, and You expressly acknowledge and expressly agree that the Company, the Stage 32® trademark licensor, and their respective agents, licensees, successors and assigns, assume no responsibility for, expressly disclaim any obligation to, and shall have no duty or obligation of any kind to, engage in, or effectuate, any such policing, monitoring, control, or limitation of communications in regard to the Session or otherwise in regard to the Service. The Company also shall not have any obligation at any time to monitor any of Your other use of, or any other person's use of, the Service or any communications associated therewith.
4.9 No Endorsement Or Promotion By Company. You expressly acknowledge and agree that neither the Company nor any of its licensors, including without limitation, the Stage 32® trademark licensor, shall at any time have any obligation to endorse or promote You or anything associated with You, Your company, or any of Your content. You expressly acknowledge and agree that nothing in this Agreement, or in any operation or use of the Service, shall be deemed to be any endorsement or promotion of You or anyone or anything associated with You.
5. Purchases.
5.1 Session Fee. The Session Fee is currently $45.00 USD.
5.2 Payment Processing Authorization. You hereby authorize the Company and the Company's payment service providers and other authorized agents and assigns ("Authorized Processors") to charge Your credit card, debit card, checking account or other authorized payment means to pay for Your Session fees. You further authorize the Authorized Processors to charge Your credit card, debit card, checking account or other authorized payment means You have elected for any and all purchases of products and services that You elect to purchase in, at, on, through, from, and/or in association with, the Services provided to You by Company. Payment for the Services provided to You in, at, through or in association with the Website may, at Company's discretion, be payable by automatic credit card payment, debit card, online checks, and other approved payment means offered by the Company, and You hereby authorize Company and its agents to transact such payments.
5.2.1 Only You May Enter Your Credit Card Information Into Forms At, Or Associated With, The Website. You acknowledge, agree and warrant that the name, account number, expiration date, security code, if any, and all other information relating to any credit card You use to pay for Your use of the Service and/or any other any service or products in, at, through or in association with, the Website, will be entered only by You via credit card data forms and data request prompts located in, at, or associated with, the Website.
5.2.3 Authorization To Charge Your Credit Card. You hereby authorize the Company, its assigns, successors and its billing agents, including, its Internet Payment Service Providers, to charge the credit card You use to pay for Your Session and/or other use of the Service. You further authorize the Company to charge Your credit card for any and all purchases of other products and services available in, at, through, or in association with, the Website, that You elect to purchase. You agree to be personally liable for all charges incurred by You in association with Your purchase of products and/or services provided by one or more third-parties in association with the Website.
5.2.4 Disputing Charges. To dispute or cancel any erroneous charge, You must contact the Company by mail at 23233 N. Pima Rd., Suite 113-148, Scottsdale, AZ 85255.
6. Term and Termination.
6.1 Term. The Term of this Agreement shall commence at the earliest time You provide Your agreement hereto, such as by clicking below or by receiving any Service from the Company, and shall continue until the end of the Session.
6.2 Termination By The Company. You acknowledge and agree that We, in our sole discretion, may terminate or suspend Your right to use the Service if You breach any obligation, warranty or guideline for use of the Service.
6.3 Survival. The following provisions, including all subparagraphs thereof, shall survive the termination of this Agreement, regardless of the reason for such termination: 1, 3.2, 3.3, 3.4, 3.5, 3.7, 3.8, 3.9, 4, 5.2, 6.3, and 7 through 27, inclusive. Without limiting the foregoing any and all other provisions of this Agreement which, because of their subject matter, should reasonably survive the termination of this Agreement, shall survive its termination, including without limitation, all express and implied releases of liability, hold harmless obligations, and indemnification obligations.
7. Service Marks (Trademarks). "Stage 32®" and “Happy Writers”™are service marks licensed to Stage 32, LLC, Inc. by Black and Blue, LLC, an Arizona Limited Liability Company. All use of the “Stage 32®" and “Happy Writers”™trademarks are by permission only. No use of the Stage 32® mark or any other marks owned by the Stage 32® trademark licensor shall be permitted except through the prior written authorization and permission of the Stage 32® trademark licensor. All rights in and to the Stage 32® mark are expressly reserved by the Stage 32® trademark licensor (owner).
8. 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; (v) any unauthorized use of any parts of the Website or content provided by another person or entity; (vi) any misrepresentation by You, (vii) any dispute of any kind between You and the Pro or You and the Moderator; and/or (viii) any unauthorized use of the Service. 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).
9. Authorization And Permission To Communicate With You. Please read our PRIVACY POLICY. You hereby authorize, permit and request notices, advertisements, e-mail and other communications of any and all kinds to be sent to You from the Company, the Company's trademark licensor, the Moderator, the Pro, other Members and Affiliated Content Providers and their authorized agents, assigns, representatives, successors, affiliates and contractors, to Your email address(es) and other contact points that You provide to the Company. You agree that the Company shall not be under any obligation or restriction regarding the sharing, renting, licensing and/or sale of Your email information to third-parties. You agree that Your request, authorization and permission to the Company to send You materials and communications shall continue to be in effect unless and until You notify the Company via email that You wish to have Your email address deleted from the Company's email list, in which case, You acknowledge and agree that the Company shall be obligated only to delete Your email address from its email list and not the email list(s) of any third-parties that have acquired Your email information during the time that You have granted the Company and/or its licensors/licensees the right to share Your email address with other parties, regardless of how or when such other parties obtained Your email information directly or indirectly from or through the Company. You acknowledge and agree that You will need to contact such third-parties to be deleted from their respective email list(s) if You wish to have Your email deleted from their email list(s).
9.1 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 unsubscribe@stage32.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.
9.2 Acknowledgment of Privacy Policy. You hereby acknowledge that You have read and agree to the Company's PRIVACY POLICY and that You expressly waive any claims against the Company that arise in relation to any matter relating to the use of personal information You provide to the Company.
9.3 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 Website Users, any of the Website's affiliates, any of the Stage 32® trademark licensor's other licensees, 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, Affiliated Content Providers, the Website's affiliates and all their agents for 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, its affiliates, and/or any Affiliated Content Providers 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.
9.4 Release Of Company From Liability Regarding Communications By, Through, Or In Association With, The Service. You hereby release Company and all other Released Parties from any and all liability and responsibility in connection with any and all information, messages, communications and other materials You receive from or by, through, or in association with, the Service and/or the Website, and You promise to never bring any action, claim or initiate any dispute of any kind regarding any such information, messages, communication or other materials that are directly or indirectly transmitted, posted, provided or otherwise made available to You or by You in, at, on, through, or in association with, the Service and/or the Website.
9.5 Communications Through The Service Shall Not Be Deemed To Be Private. You agree that any and all messages and other communications by You are neither private nor secure.
10. No Representation, Guarantee Or Warranty That Service Is Free Of Harmful Or Malicious Code. You understand that the Company does not represent, guarantee or warrant that either the Service or the Website will be free of viruses, worms, Trojan horses, code that may manifest contaminating or destructive properties or any other harmful software (“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 content or other information through Your use of the Website, and/or the Service provided by the Company or its affiliates.
11. Your Use Of The Service Is At Your Own Risk. You hereby agree that the use of the Service and the Website, is 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. You acknowledge and agree that any and all disclosures, including without limitation, story ideas, treatments, scripts, production concepts, casting suggestions, etc., You make to the Pro, the Moderator, other Session participants, if any, and/or Company or its agents shall at all times be at Your own and sole risk and neither Company nor any of the Released Parties shall be liable in any way for any consequence(s) resulting from any such disclosures. Company does not warrant that the functions of the Service and/or the Website 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, the Pro, the Moderator or any of the Company's suppliers, licensors (including without limitation, the Stage 32® trademark licensor), licensees, resellers, affiliates or their suppliers, licensees or resellers or any Released Parties be liable to You or any other person for any indirect, special, incidental, or consequential damages of any kind 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, members, any other Service or Website Users, or from any use of any content, the Website or Services provided by the Company. This disclaimer of warranties 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 insure 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.
12. Limit Of Liability.
12.1 Liquidated Damages. Notwithstanding, and without limiting, the limitations of liability above, You also agree that as a material condition to Your obtaining the license to access and use the Service, You agree that the amount of any and all compensation for any and all liability that might be attributable to the Company and/or one or more other Released Parties that directly or indirectly results from, arises under, or is otherwise related to, Your use of Service, including, without limitation, any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft, destruction, infringement, or unauthorized access to, alteration of, or other use of content, including without limitation content You provide (including without limitation, for example, scripts, treatments, ideas, etc.), any and all acts and omissions by the Pro and/or Moderator, any and all breaches of contract, negligence, infringement of intellectual property rights, and any and all causes of action, shall be strictly limited to the amount of the applicable Session Fee(s) paid by You. Some states do not allow some or all of the limitation or exclusion of liability contemplated in this Paragraph. Regardless of whether such non-allowance 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, including without limitation, the liquidated damages provisions 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 insure that the limitations of liability and 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, changing by mutual agreement, which is hereby provided by the Parties, the applicable choice of laws that is applicable for dispute resolution regarding matters involving liability and/or damages (such as liquidated damages and other limitations of liability) to the laws of a jurisdiction that does not limit the applicability or scope of those provisions as contemplated by this Agreement.
12.2 NO INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU UNDERSTAND AND AGREE THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ANY OTHER RELEASED PARTY 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 USE OF THE SERVICE PROVIDED BY COMPANY AND/OR ITS AGENTS, AND/OR ARISING OUT OF ANY USE OF THE WEBSITE, 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 AND OTHER LIMITATIONS OF LIABILITY IN THIS AGREEMENT REFLECT 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.
12.3 Liability Waiver and Release. To the maximum extent permitted by law, You hereby expressly and knowingly release and hold harmless the Company and all other 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 damages arising out of, relating to, or associated with Your use of the Service, including, without limitation, any and all injuries, losses and damages resulting from (i) comments, opinions, advice and other communications and subsequent actions and inactions by the Pro and/or Moderator, (ii) transmission or exhibition, or failure to exhibit or transmit, any part of the Session, for any reason, including but not limited to, negligence, human or technical error, (iii) actions or omissions, including without limitation, future actions and omissions, by any third-party, including, without limitation, the Pro or the Moderator, (iv) any and all occurrences of one or more Force Majeure events, or (v) any and all cancellations, terminations, suspensions or material modifications of the operation of the Service and/or Session, 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, at any time, 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 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 receive the Service contemplated by this Agreement, and, but for such material inducements, Company would not have extended such offer to You or entered into this Agreement with You.
12.4 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 attorney regarding, 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
You hereby expressly waive any and all rights under Section 1542 and all similar rights under any other federal or state statutes or laws of similar effect with respect to all releases set forth in this Agreement. 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.
13. Entire Agreement. This Agreement supersedes all prior written and oral understandings, writings and representations, including without limitation, those, if any, involving one or more other persons or entities.
14. Special Provisions Applicable to Users Outside the United States. We strive to create a global community with consistent standards for everyone, but We also strive to respect local laws. The following provisions apply to You and other users outside the United States:
14.1 You consent to having Your image, likeness, voice, name and personal data transferred to and processed in the United States.
14.2 If You are located in a country embargoed by the United States, or You are on the U.S. Treasury Department's list of Specially Designated Nationals, You expressly agree that You will not engage in commercial activities on Stage 32® (such as advertising or payments) or operate a platform application or website.
15. Dispute Resolution.
15.1 Arbitration. You agree that 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 (subject to the change of choice of laws provisions of this Agreement). 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.
15.2 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 Services, 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 Service. 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. Notwithstanding the foregoing, the choice of laws provisions in this Paragraph shall be subject to change to the extent the choice of laws must be changed to those of a jurisdiction allowing for the validity and effectiveness of the limitations of liability and liquidated damages provisions of this Agreement as contemplated and intended by the Parties.
15.3 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.
15.4 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 in any way to, this Agreement, the Service or the Website must be filed within one (1) year after such claim or cause of action arose or such claim or cause of action shall be forever barred, and You further expressly agree to (i) not ever file any action or otherwise raise any claim intended to be so barred by this Paragraph, and (ii) indemnify the Indemnified Parties for any and all costs, expenses and damages, including without limitations, all attorneys fees associated with any party bringing any such action or claim intended to be barred as indicated above.
16. 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 will not affect the validity and enforceability of any and all the remaining provisions).
17. Non-Waiver. You acknowledge and agree that the failure by the Company, any of the Stage 32® licensors', 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.
18. 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, any Pro or any Moderator, 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, or any Pro or any Moderator.
18.1 You acknowledge and agree that We shall have no control of any kind in Your business affairs.
18.2 You acknowledge and agree that You shall have no financial or other interest of any kind in or to the Company or in any property owned by Company or in any entity related to the Company, and that You shall have no control of any kind in the Company's business affairs, including, without limitation the management of any of its programs, such as the Service.
18.3 You acknowledge and agree that Your relationship with the Company shall be restricted to matters pertaining to the Service only and that all such matters shall be governed entirely by this Agreement.
19. Company Is An Online Service Provider. Company shall, to the maximum extent under law, be deemed to be an Online Service Provider ("OSP") as that term is defined in the DMCA for all claims arising hereunder, and in association with Content available in, at, on, through or associated with the Website and/or Services provided by the Company. Company shall also be deemed to be an Interactive Computer Service as that term is used in the Communications Decency Act. In the event that You believe that any of Your copyrights are infringed on, in, at, through, or in association with, the Website and/or the Service, You agree that You shall and will give notice and comply with the notification procedures of the DMCA and agree that Company will have and shall fully benefit from the safe harbor provisions set forth in the DMCA regarding OSPs, the liability limitations, Good Samaritan and other provisions pertaining to Interactive Computer Services set forth in 47 U.S.C. § 230 (c) et seq., and all similar notice and other provisions limiting or otherwise insulating the liability of OSPs and Interactive Computer Services pursuant to the statutory or case law of the United States, any state or territory thereof, or any jurisdiction in which You, Your assigns or any other party elects to bring any claim against Company, the Stage 32® trademark licensor, or any of Company's, or the Stage 32® trademark licensor's, assigns or sub-licensees of rights granted to Company and/or the Stage 32® trademark licensor hereunder. You expressly agree not to raise any claim against Company or join with any third-party in any claim against Company whereby an assertion or claim is made that Company is not an OSP or an Interactive Computer Service.
20. Authority To Enter Into Agreement. The Parties and their representatives executing this Agreement hereby acknowledge and represent that the representatives executing this Agreement are duly authorized agents of the Parties hereto and are authorized and have full authority to enter into this Agreement on behalf of the Parties for whom they are executing.
21. Affirmation Of Agreement; Acknowledge You Have Read This Entire Agreement. You hereby acknowledge and agree that by clicking on a link intended to signify Your agreement to this Agreement, for example, by clicking an acceptance button, by engaging a button or link that contains the following or similar language: "I understand and agree to all of the above", by providing an electronic signature, by continuing to access the Website, by receiving any Service from the Company, by using any feature or functionality available in, at, on, through, or associated with, the Service provided by the Company, by paying for a Session, or by participating in any way, as a user of the Service or the Website, You will be expressly agreeing that You have read this entire Agreement and that You understand, and fully and irrevocably agree to, all its terms, conditions, releases, warranties, indemnifications, and other provisions. You further agree that Your acknowledgment and agreement to the entirety of this Agreement is serially reaffirmed by each of Your authorizations of the use of Your credit card for payment of charges for Your Membership, and each time You access any part of the Service or Website, upload any content to the Website, provide any content to the Pro, the Moderator and/or the Company, and/or receive or otherwise use any other service provided by the Company.
22. 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 23233 N. Pima Rd., Suite 113-148, Scottsdale, AZ 85255. You hereby expressly acknowledge that Company has provided You with an opportunity to propose modifications to, and otherwise negotiate, 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.
23. 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.
24. 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.
25. E-Sign Act. You and Company expressly agree that this Agreement is intended by You and the Company to be governed by the Electronic Signatures in Global and National Commerce Act ("E-Sign Act") and other applicable statutory and common law that best effectuates the Your express intent and the Company's express intent to create a fully enforceable agreement indisputably binding You and the Company to all the terms, conditions and other provisions set forth in this Agreement. You further acknowledge and agree that You will be deemed to have manifested Your agreement to this Agreement by any act that reasonably demonstrates Your assent to this Agreement, including, without limitation, by any means set forth in Paragraph 21 above. You agree that by providing Your assent to this Agreement You will be consenting to having information regarding this transaction provided to You by electronic record. You acknowledge that You may access and obtain an electronic version of the executed copy of this Agreement, free of charge, please send your request to: 23233 N. Pima Rd., Suite 113-148, Scottsdale, AZ 85255. Access to the electronic record of this Agreement requires a simple browser program such as Internet Explorer™, Firefox™ or Safari™, an Internet connection, and a computer. You acknowledge that Your computer equipment, and changes thereto, may affect Your ability to obtain an electronic version of the executed document. You acknowledge and agree that if any applicable law requires that information regarding this transaction be provided to You in writing, that You have the option of having such information provided to You on paper and that You may withdraw consent to have a record of such information provided to You electronically by emailing Company at unsubscribe@stage32.com. You may update information for Company to contact You, and for You to obtain a paper copy of the aforementioned required information, if any, at no cost, by emailing Company at the same address. You acknowledge that until You electronically provide Your assent to this Agreement You have the option of entering into a hard copy paper version of this Agreement by request to the Company at info@stage32.com.
26. Export Control. Your use of the Services provided by the Company is subject to export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You agree that You will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that You are not prohibited from receiving products originating in the United States, including services or software.
27. 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 HAVE READ THIS AGREEMENT IN ITS ENTIRETY, THAT YOU FULLY UNDERSTAND AND AGREE TO ALL ITS TERMS.
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