2. Age and Representatives. The Website is intended to be accessed and utilized by Users who have attained the age of majority in their respective jurisdiction. By accessing and using the Website, each individual User hereby represents, warrants, and affirms that User is either at least 18 years of age, an emancipated minor, or has acquired a parent or guardian’s consent. User hereby affirms that User is, at a minimum and without exception, 13 years old. The Website is not intended to be accessed or utilized by children less than 13 years of age. If User is accessing or using this Website on behalf of a company or other organization, this Agreement also applies to such company or organization as a User, and the individual User represents and warrants that he or she has full authority to access and use this Website on behalf of the company or other organization and to bind the company or organization.
3. User Registration. User may be asked to register with the Website (“Registered Users”). Registered Users hereby agree to: 1) provide accurate and complete information (“User Information”) as prompted by any Website registration form; and 2) maintain and promptly update User’s User Information to keep it accurate and complete. Video Brewery reserves the right to suspend or terminate a Registered User’s access to and use of the Website, or any portion thereof, on the basis of inaccurate or incomplete User Information.
Each individual User agrees not to register with the Website as a Registered User unless such User is at least 18 years of age.
Registered Users may be required to select a username and password when completing the registration process. Registered Users are solely and fully responsible for maintaining the confidentiality of their own usernames and passwords, and Registered Users are solely and fully responsible for all activities occurring under their username and password. Registered Users agree to: 1) immediately notify Video Brewery of any unauthorized use of their usernames and passwords or any other breach of security; and 2) ensure that Registered User logs off from their accounts at the end of each session. Video Brewery shall not be liable for any loss or damage arising from a Registered User’s failure to maintain the confidentiality of its username and password.
4. “Video Brewery” Process.
i. Users who have registered with the Website as clients (“Client Users”) may submit requests for video production services (each, a “Project”) to the Website, through the Website’s submission process, for production proposals (“Proposals”) from Users who have registered with the Website as video production service providers (“Creative Users”).
ii. Client Users and Creative Users acknowledge that this Agreement sets forth the agreement between them and Video Brewery. Client Users and Creative Users further acknowledge that, when a Client User accepts a Proposal, the form of Video Services Agreement (the “VSA”) provided by the Website sets forth the agreement between the Client User and the Creative User whose Proposal was accepted, subject to any permissible modifications to the VSA agreed upon by the Client User and the Creative User. Client Users and Creative Users acknowledge and agree that Video Brewery is a third party beneficiary of certain provisions of the VSA (as identified in the VSA) and that no changes to such provisions or attempt to circumvent such provisions are effective without the express written and signed consent of Video Brewery.
b. Process. Client Users and Creative Users will use the Website as it is designed for purposes of posting Projects, posting Proposals, entering into engagements for video production services, uploading and downloading files and other Project material, making payments, and cancelling engagements.
c. Client Users. Client Users agree to pay Project deposits, commissions, and other fees as from time to time described on the Website. Without limiting the foregoing, Client Users will pay Video Brewery a commission (“Commission”) equal to 20% of all amounts paid or payable by Client User for a Project (with a credit for the project deposit but irrespective of any refunds for Project cancellations by Client Users). Client Users will use the interface provided by the Website (and only such interface) for making payments to Creative Users for a Project.
d. Creative Users. Creative Users acknowledge that any payments to be made by a Client User for a Project must be made via the Website and are subject to Commissions and other fees from time to time described on the Website.
e. Payment Timing. Client Users and Creative Users acknowledge that Video Brewery will hold payment amounts submitted by Client Users to the Website and will remit payments to Creative Users and will remit refunds for Project cancellations, all as described in the VSA, subject to any amendments made with Video Brewery’s written consent. Video Brewery will pay no interest on amounts held by it.
f. Non-Circumvention. Client Users and Creative Users acknowledge that the Website and the services it provides are valuable and unique and agree, for a period of six months from the date a Project is submitted, not to circumvent the Website for video production or related services by a Creative User to a Client User who initially made contact or communicated via the Website and further agree that Commissions will be due and payable on any amounts paid by Client Users in violation of this paragraph, and Client Users and Creative Users will be jointly and severally liable for the payment of such Commissions.
g. Accounts. Because payments by Client Users to Creative Users are made via the Website, Client Users and Creative Users will each open and maintain at least one account with a payment processing and billing service provider supported by the Website. Each of Client and Creative agrees to bear and pay all the fees and charges it may incur through such service provider accounts at the rates in effect from time to time.
5. Disclaimer. The Website and the entirety of its contents are provided “AS IS,” and Video Brewery hereby disclaims all express and implied warranties including, but not limited to, warranties of merchantability and fitness for a particular purpose. Video Brewery expressly disclaims any representation or warranty that:
a the Website will meet User’s requirements;
b access to the Website will be uninterrupted, timely, secure, or error-free;
c any information obtained through or from the Website will be accurate or reliable;
d Projects submitted will receive any Proposals or a Proposal to a Client User’s satisfaction;
e the VSA provided by the Website is appropriate for Client Users or Creative Users;
f. the quality of any products, services, information, or other material purchased or obtained by you through the Website will meet expectations;
g any User-provided information will not be disclosed, in the absence of User-provided approval, to third parties;
h the Website satisfies the laws of any country other than the United States; or
i. any data or software errors will be corrected.
Video Brewery shall not be held responsible for technical malfunctions of any telephone system, cable system, computer equipment, server, provider, or software. Video Brewery shall not be held responsible for any injury or damage to User’s computer resulting from use of the Website including, but not limited to, web page viewing, file downloading, accessing third party services, or following Website links. User accesses the Website at his/her own risk and is singularly responsible for any loss, damage, or costs incurred during such activity. Video Brewery shall not be responsible for any incorrect or inaccurate content posted on the Website, regardless of the cause of such inaccuracy. Video Brewery shall not be responsible for any conduct of any User of the Website. Video Brewery shall not be responsible for any error, omission, interruption, deletion, defect, operational delay, communication line failure, or theft, destruction, or alteration of User’s communication. No data or information obtained from Video Brewery or the Website shall create any warranty.
6. User Content.
a. General. The Website provides features which allow Users to post or submit content (“User Content”) to or through the Website including, without limitation, photographs, messages, commentary, documents, images, software, videos, files and any other information or audiovisual material. User is solely responsible for User Content that it posts or submits to or through the Website. Video Brewery has no obligation to monitor or approve User Content posted or submitted to the Website by any User. Video Brewery may, in its sole and unfettered discretion, edit, remove, or delete any User Content.
b. Prohibited Postings. As a condition to accessing and using the Website, User agrees not to post or submit User Content that:
i. is unlawful, threatening, abusive, libelous, defamatory, slanderous, obscene, vulgar, pornographic, indecent, or would constitute a criminal offense, give rises to civil liability, or otherwise violates any local, state, national, or international law or regulation;
ii. violates or infringes upon the rights of others including, without limitation, privacy or publicity rights, intellectual property rights including, without limitation, copyright, patent, trade secret, or trademark rights, or other rights, without first obtaining permission from the owner or rights holder;
iii. promotes malice or harm of any kind against any group or individual;
iv. solicits user passwords, financial information, or personal identification for unlawful purposes;
v. contains a virus, spyware, malware, or harmful software; or
vi. constitutes junk mail, unsolicited mass mail, or spam.
The foregoing is only a partial list of the kind of User Content which is prohibited on the Website. Video Brewery reserves the right to investigate and take appropriate action, legal or otherwise, in its sole discretion against anyone who violates this section including, without limitation, removing the offending content from the Website and terminating the violator’s Website access.
c. License Grant. By posting or submitting User Content (or, in the case of Project postings by a Creative User for the benefit of a Client User, requesting or causing the posting or submission of User Content), User automatically grants, and warrants that it has the right to grant, to Video Brewery and its licensees, affiliates, successors, and assigns, a perpetual, irrevocable, worldwide, non-exclusive, fully paid-up, royalty-free, license (“License”) to use and promote the User Content (including the Final Video (as defined in the VSA), screenshots, and the User’s name and any embedded trademarks or service marks) in any form, in all media now known or hereinafter created, anywhere in the world, for demonstration, sample and marketing purposes, including without limitation the right to display such material on any website owned or operated by Video Brewery, including the Website. Video Brewery may also include User’s name and trademark or service mark in a list of users of the Website for marketing and promotional purposes. Video Brewery will not exercise its rights under this paragraph in a manner derogatory to the Client.
User hereby waives, and represents and warrants that it has obtained the waiver of, any and all moral rights in User Content that it submits or posts on or through the Website including, without limitation, rights of attribution or integrity, and any similar rights in any jurisdiction worldwide.
User represents and warrants that it has obtained all necessary consent and authority from any individual whose likeness appears in any User Content to: 1) post and submit such content on or to the Website; and 2) comply with and fulfill its obligations and grants of rights under this Agreement.
User further represents and warrants that Video Brewery’s exercise of any of its rights under this Agreement will neither violate nor infringe upon the rights of others including, without limitation, privacy, publicity or intellectual property rights.
d. Confidentiality. Certain features of the Website allow Client Users and Creative Users to post User Content that is designated for viewing or access by specified Users only. These features include private messaging features, Proposals, and Project materials. The Website is designed to maintain the confidentiality of such User Content consistent with the Website’s descriptions of its operation, and Video Brewery has taken reasonable steps to limit access consistent with such descriptions, subject to the disclaimers, limitations and rights set forth in this Agreement and to the ability of Video Brewery personnel and authorized agents to access User Content for Website maintenance and operation and to monitor and enforce compliance with this Agreement.
7. General Use of Website. User agrees to act responsibly. User agrees NOT to:
a. use any content or information available through the Website for any unauthorized purpose;
b. interfere with or damage the Website including, without limitation, through the use of viruses, spyware, malware, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing, or methods that in any way reproduce or circumvent the navigational structure or presentation of the Website or its contents;
c. collect, store, or distribute any information about any other User other than in the course of the permitted use of the Website;
d. impersonate any person, company, or entity;
e. modify, sublicense, translate, sell, reverse engineer, decipher, decompile, or otherwise disassemble any portion of the Website or any software used on or for the Website; or
f. assist any third party in doing any of the foregoing.
8. Interactions with Other Users. User is solely responsible for its interactions with other Users including the User’s messages to other Users and other User Content of the User. Video Brewery shall not be responsible for any damage or harm resulting from User’s interactions with other users of the Website.
User understands that Video Brewery does not necessarily screen Users. Video Brewery makes no representations or warranties as to User conduct. Video Brewery reserves the right, without obligation, to: 1) monitor all interactions between Users; and 2) take any action in good faith to restrict access to or the availability of any User Content which Video Brewery considers prohibited.
All messages sent between Users may be reviewed by Video Brewery for compliance with this Agreement, but will be treated as private to the extent required by applicable law. User is solely responsible for all interactions with other Users. User is implored to not provide financial information of any type to other users.
9. Links. The Website contains or may contain links to other internet sites and resources, and User hereby acknowledges and agrees that: 1) Video Brewery shall not be responsible for the availability of such external sites or resources; and 2) Video Brewery does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. User agrees that Video Brewery shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such website or resource.
10. Proprietary Rights. All Website content, including User Content, is protected under international law and is owned by Video Brewery, the party accredited as the provider, or their respective licensors. Unless expressly authorized in writing by the party holding the rights to such Website content, User agrees not to sell, license, modify, distribute, reproduce, publicly display or perform, publish, or create derivative works from content available on the Website.
11. Limits on Liability. To the fullest extent permitted by law, Video Brewery, its affiliates, subsidiaries, officers, directors, employees, agents, licensors, successors, and assigns (“Video Brewery Parties”) shall not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages arising from or relating to: 1) the Website’s availability; 2) the acts, omissions, or conduct of any User or third party, whether online or offline; 3) any User Content or other Website content; 4) any goods or services acquired as a result of any information obtained or transactions entered into through the Website; 5) any use of goods or services made available on any internet resource or webpage linked to the Website; 6) use of the Website and the services offered by it; 7) use of the VSA provided by the Website; or 8) the disclosure, alteration, or use of any User Content or User Information.
The Video Brewery Parties’ aggregate liability to User or any third party, in any matter (or series of related matters) arising from or related to the Website or the Agreement, shall not exceed the sum of $1,000.
User’s access or use of any third party website or internet resource linked to or from the Website, or User’s use of goods or services from third party websites or internet resources linked to or from the Website, is made at User’s own risk. User hereby releases the Video Brewery Parties from any damages User suffers from User’s access to third party website or internet resources, and User agrees not to make any claims against the Video Brewery Parties arising from any purchase or acquisition of goods and services made available through the Website or though third party websites or internet resources.
The Video Brewery Parties shall not be liable for any damages resulting from the failure, by any party, to protect User passwords or account information. The Video Brewery Parties shall not be liable for any failure or performance delay under the Agreement due to circumstances beyond the Video Brewery Parties’ control including, but not limited to, natural catastrophes, governmental acts, laws or regulations, terrorism, labor strikes or difficulties, communication system interruptions, hardware or software failures, transportation interruptions, or any inability to acquire materials or supplies.
12. Indemnification. User agrees to indemnify, defend, and hold harmless the Video Brewery Parties from and against any loss, liability, or expense, including reasonable attorneys’ fees and expenses and court costs, arising out of or related to: 1) any third party claim against any Video Brewery Party alleging that User Content posted or submitted to the Website infringes any of the third party’s rights; 2) any User breach of any provision of this Agreement and/or any representation or warranty identified herein; 3) in the case of a Client User, any claim by a Creative User against Client User; 4) in the case of a Creative User, any claim by a Client User against Creative User; or 5) any cost or expense Video Brewery incurs in enforcing this Section. Video Brewery reserves the right to control the defense and settlement of any action or proceeding against any Video Brewery Party that User is bound to defend pursuant to the foregoing.
13. Termination. Video Brewery, in its sole and unfettered discretion, may terminate User’s access to the Website for any reason including, without limitation, User’s breach of this Agreement. User agrees that any termination of its access to the Website may be effected without prior notice, and User agrees that: 1) Video Brewery may immediately deactivate or delete any of User’s accounts and all related information and files in such accounts; and 2) bar any subsequent access to the Website or User Content. User agree that Video Brewery shall not be liable to User or any third party for any costs or damages of any kind for or resulting from any termination of User’s Website access. Video Brewery reserves the right to block users from certain IP addresses from accessing the Website.
14. Discontinuance of Service. Video Brewery reserves the right to modify or discontinue, temporarily or permanently, any portion of the Website without prior notice. User agrees that Video Brewery shall not be liable to User or to any third party for any modification or discontinuance of any portion of the Website.
15. Take-Down Requests, DMCA. Video Brewery expressly prohibits users from uploading, posting, or otherwise distributing through the Website any content which may violate another party’s privacy, publicity, intellectual property, or other rights. If any User believes any Website content violates or otherwise infringes upon any of User’s rights, User is encouraged to contact Video Brewery immediately to request that the allegedly offending content (“Offending Content”) to be removed from the Website. To make such a request, User should provide Video Brewery designed agent, listed below, with:
a. the identity of the Offending Content in sufficient detail such that it can be readily located (e.g., “The photograph of <detailed description> available at http://www.videobrewery.com/item123”);
b. User’s name, mailing address, email address, and telephone number; and
c. the name, user id, email, telephone phone number, and mailing address of the person you believe posted the Offending Content (as available).
In accordance with the Digital Millennium Copyright Act (“DMCA”), Video Brewery has designated a Copyright Agent who is charged with receiving notification of alleged copyright violations, and may accept notification of other offending Website content. If you believe in good faith that material appearing on this website infringes your copyright, provide notification, pursuant to 17 U.S.C. § 512(c)(3)(A), to our Copyright Agent at:
Attention: Copyright Agent
Address: 115 N. Oak Park Ave., Suite B2
Oak Park, IL 60301
Email: [email protected]
Similarly, the DMCA provides that if you, in good faith, believe that a notice of copyright infringement has been wrongfully filed against you, you may send to our Copyright Agent a counter notice, subject to the requirements set forth in 17 U.S.C. § 512(g)(3) (2006).
Lastly, it should be noted that individuals making misrepresentations made in alleging that material appearing on this website constitutes copyright infringement may be liable for damages pursuant to 17 U.S.C. § 512(f) (2006).
Video Brewery will process proper notice of copyright infringement under DMCA, will comply with DMCA in removing or disabling access to content such to notice, and may terminate the accounts of repeat infringers.
a. Choice of Law; Jurisdiction. This Agreement will be governed by and construed under the laws of the United States of America and, to the extent not inconsistent therewith, the laws of the State of Illinois without regard to conflicts-of-laws principles that would require the application of any other law. To the fullest extent permitted by applicable law, Video Brewery disclaims the applicability of, or obligations under, the laws of any country other than the United States of America. Any proceeding arising out of or relating to this Agreement must be brought in the courts of Cook County, Illinois, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the proceeding will be heard and determined only in any such court and agrees not to bring any proceeding arising out of or relating to this Agreement in any other court. The parties agree that either or both of them may file a copy of this Section with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any proceeding referred to in the first sentence of this Section may be served on any party anywhere in the world. In any action at law or in equity to enforce or interpret this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements incurred both before and after judgment in addition to any other relief to which such party may be entitled.
b. Severability. If any provision – or portion of a provision – of this Agreement is held invalid, unenforceable, or void, the remainder of the Agreement shall remain unaffected and shall continue in full force and effect.
c. Merger. This Agreement is the entire agreement between the parties hereto with respect to the subject matter hereof, and replaces any and all prior negotiations, representations, or agreements between the parties, whether oral, electronic, or written, pertaining to the managerial relationship outlined herein. The parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, not contained in this Agreement. No waiver or any breach of this Agreement shall be construed as a continuing waiver or consent to any subsequent breach hereof.