Effective as of and last revised on February 8, 2012
By accessing any of the websites of Creative Age (“we,” “us,” and/or “our”), including but not limited to the websites located at www.CreativeAge.com, www.CreativeAge.com/Store, www.BeautyEtc.com, www.BeautyStoreBusiness.com , www.TheColoristMag.com, www.DayspaMagazine.com, www.InspireBooks.com, www.InternationalHaircolorExchange.com, www.MedEstheticsMagazine.com, and www.Nailpro.com, (collectively, “the Site”), each user (“you,” “your,” “user” and/or “users”) hereby agrees to be legally bound by all of the terms and conditions set forth below (collectively, “the TOU”), which apply to all content, functions, and other aspects of the Site in its entirety.
If you do not agree to be legally bound by all of the following terms and conditions of the TOU, then please do not access and/or use the Site and exit the Site immediately.
1. Agreement to Be Bound. Please read all of the following terms and conditions of the TOU before accessing and/or using any of the content and/or functions that are available on or through the Site. By accessing and/or using the Site, you confirm that you have read and understood, and agree to be bound by, all of the terms and conditions of the TOU, including the warnings, restrictions and disclaimers set forth below.
The TOU include, and incorporate by reference the Salon Owner Submission Agreement, the Stylist Release, the Non-Exclusive Photography License, the Model Release, the Ratification by Parent or Guardian of Minor, and the Photo Submission Form, as well as various terms and conditions that are or will be posted at the Site from time to time.
If you do not agree to be bound by all of the terms and conditions of the TOU and the warnings, restrictions and disclaimers, please exit the Site immediately.
We reserve the right to revise and update the TOU at any time, and your continued access to or use of the Site thereafter shall constitute acceptance of such revised and updated terms and conditions.
You should revisit and review the TOU, which were last revised on 2-8-12, to familiarize yourself with any additions, deletions or modifications.
2. Registered Users. You may upload content to the Site only if you have registered and logged in to the Site by following the registration and log-in procedures set forth at the Site. A “Registered User,” as the term is used in the TOU, refers to the individual who completes an on-line registration form, or who creates an account on the registration/create an account/log-in page(s) of the Site, and whose registration is current at the time of each log-in. Each Registered User must be an individual identified by his or her legal name and current address. Technical specifications regarding the uploading of content by a Registered User are posted at the Site and may be changed from time to time in the sole and absolute discretion of Creative Age. As to any item of content that you may wish to upload to the Site, including but not limited to text, artwork, photographs, sound recordings, audio-visual recordings, classified advertisements, postings to forums and bulletin boards, comments, etc. (collectively, “User Content”), all of the terms set forth in the TOU shall apply.
3. Requirements for Registered Users and Posting of User Content.
3.1 A Registered User must be an adult according to the laws of his or her state of residence. Minors may not become Registered Users under any circumstances.
3.3 By registering on the Site and by posting User Content, the Registered User hereby expressly represents and warrants to us that he or she is fully empowered under all applicable law to do so, and hereby agrees to indemnify, defend and hold us harmless against any liability that may result from such access and use by the Registered User.
4. Access to and Use of the Site.
4.1 Subject to your compliance with the TOU, we grant you a limited, revocable, nonexclusive, non-assignable, non-sublicenseable right to access and use the Site through a generally available web browser or mobile device as we intend the Site to be accessed and used, and not through scraping, spidering, crawling or other technology or software used to access or harvest data without the express written consent of Creative Age. We reserve all rights and interests not expressly granted in the TOU.
4.2 Access and use of the Site is not permitted in any place or by any person if such access and/or use is restricted or prohibited by law.
5. User Content. As to each item of User Content that you may upload to the Site, you hereby expressly make the following representations and warranties:
5.1 The User Content is your sole and original creation, and you own and control all rights in and to the User Content, or, if you have used intellectual property belonging to a third party, you have acquired in a signed written agreement from such third party any and all rights that may be necessary for you to own and use the User Content as contemplated in the TOU and for you to grant us the right to do so.
5.2 The User Content has not been copied or derived in whole or in part from, and does not embody, any other works except pursuant to your acquisition of all rights from the owner(s) of any such works as noted above.
5.3 The User Content may be used by us as contemplated in the TOU without the knowledge, consent or approval of any third party, including but not limited to any individuals who may be depicted in the User Content.
5.4 The User Content does not violate or infringe any copyright, trademark, privacy or publicity right, or other personal, proprietary or intellectual property right of any person or entity.
5.5 The User Content is not defamatory, obscene, or otherwise illegal or violative of the rights of others, and is your sole and exclusive property.
5.6 If the User Content depicts, describes, identifies or otherwise relates to a minor child, you are the parent or legal guardian of such minor child(ren) and enjoy the right to consent to the use of the User Content by us as contemplated in the TOU, or you have obtained written consent to do so from the parent or legal guardian of such minor child(ren) and will provide such written consents to us upon request.
5.7 The use of the User Content by us will not expose us to any legal claims or liabilities of any kind whatsoever.
5.8 You hereby waive and release any and all rights and claims that you may be entitled to assert against us, or our licensees, successors and assigns, by reason of any use of the User Content authorized under the TOU.
6. License of Rights to User Content. You reserve ownership and control of all intellectual property rights in and to the User Content subject only to the following license, which is hereby granted by you to us as to any and all User Content:
6.1 As to any and all User Content that you may upload or otherwise submit to us, you represent, warrant and agree that you are hereby granting us the following non-exclusive, irrevocable, royalty-free, and fully transferable rights under copyright, trademark and other intellectual property rights, all of which rights may be exercised by us or our licensees, successors and assigns in any and all media now known or hereafter devised, in any and all languages, throughout the world, and in perpetuity:
(a) The right to adapt, edit and generally use and re-use the User Content, in whole and/or in part, alone and/or in conjunction with other content of any and all kind whatsoever;
(b) The right to create derivative works based on the User Content;
(c) The right to translate, modify, archive, store, post, display, exhibit, transmit, reproduce, broadcast, publish, and generally exploit any and all of the User Content and/or any derivative works based on the User Content or in which the User Content may be embodied for any purpose whatsoever, including but not limited to, and by way of example only, editorial, advertising, merchandising, and other uses of any and all kinds and in any and all media, and to authorize others to do so;
(d) To post the User Content in a manner that permits viewing and comment by other users of the Site, all in a place, style, manner and duration subject to our sole and absolute discretion; and
(e) The right to exploit and/or refrain from exploiting any and all of the foregoing rights at any time in our sole and absolute discretion.
7. Rejection and Removal of User Content. You acknowledge and agree that we shall have the right but not the obligation, in our sole and absolute discretion, to review User Content and to reject and/or remove any
User Content that we may deem to be unacceptable, whether because the User Content does not comply with the TOU, or because we deem the User Content to be offensive or otherwise inappropriate, or because a claim has been made that the User Content violates the law or the rights of a third party, or for any other reason.
8. Access to User Content. We reserve the right, in our sole and absolute discretion, to determine the terms and conditions on which access to the Site and the viewing of User Content and/or other content posted at the Site (collectively, “Site Content”) are permitted to various users of the Site and to change such terms and conditions from time to time by amending the TOU. By way of example only, and without limiting the foregoing, we have the right (but not the obligation) to remove, edit, move or close any topic at any time we see fit and/or to deny access and/or use of the Site by any person. We also have the right to suspend, revise and reconfigure, and/or discontinue the Site and/or any of the content or functionality of the Site, in whole or in part, at any time in our sole and absolute discretion.
9. Digital Files and Physical Materials. Creative Age is not obligated to maintain backup copies of any digital or electronic materials or files submitted to the Site. If you submit User Content to us in the form of physical materials, you are hereby assigning outright ownership of the physical materials in which the User Content is embodied, e.g., digital storage media of all kinds, as well as photographic prints, photographic negatives, drawings, textual materials, manuscripts, and so on. You agree to make and keep copies of any and all User Content that you may submit, and we are not responsible or liable for any loss, damage and/or destruction of any such materials, and we are not required to return any such materials to you.
10. Contests, Competitions and Sweepstakes. From time to time, contests, competitions and sweepstakes may be offered at the Site. The rules, terms and conditions applicable to contests, competitions and sweepstakes made available through the Site are posted at the Site and are incorporated by reference in the TOU. All contest, competition and sweepstake entries are deemed to be “User Content,” and all terms and conditions of the TOU relating to User Content apply with full force and effect to all such entries.
11. Terms of Sale and Refund Policy. The terms and conditions of sale of goods and services at the Site, including the policies and procedures relating to refunds, are posted at the Site and are incorporated by reference in the TOU. The terms and conditions of sale may be changed from time to time in our sole and absolute discretion. You agree to be bound by all posted terms and conditions of sale.
12. Advertisements. The Site may contain advertisements by third parties, and these advertisements may contain links to other websites. Unless otherwise specifically stated, we do not endorse any product or service or make any representation regarding the content or accuracy of any materials contained in, or linked to, any advertisement on the Site.
13. Links to Other Sites. The Site may contain links to third-party websites. If so, these links are provided solely as a convenience to users. We are not responsible for the content of any linked third-party websites, and we do not make any representations regarding the content or accuracy of any content or materials on such third- party websites. If you access any linked third-party website, you do so at your own risk. Any use of third-party websites is subject to the terms and conditions for such websites.
14. Unacceptable Uses of the Site. Without limiting or diminishing our rights under the TOU, we strictly prohibit all of the following uses of the Site:
(a) Using the Site to transmit or post any material that contains or links to pornography, adult content, sex, or extreme violence or to disseminate or transmit any material that, to a reasonable person, may be abusive, obscene, pornographic, grossly offensive or malicious.
(b) Using the Site to transmit or post any material that, intentionally or unintentionally, violates any applicable local, state, national or international laws, rules or regulations.
(c) Using the Site to harm, or attempt to harm, minors in any way.
(d) Using the Site to transmit or post any material that is defamatory or harassing or which threatens or encourages bodily harm or destruction of property.
(e) Using the Site to make fraudulent misrepresentations or offers or engage in any other wrongful business activity of any kind.
(f) Using the Site to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures or another entity’s software or hardware, electronic communications system or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
(g) Using the Site to transmit or post any material that infringes any copyright, trademark, patent, trade secret or other intellectual proprietary or proprietary rights of any third party, including but not limited to, the unauthorized copying and/or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software.
(h) Using the Site to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
(i) Using the Site to disseminate or transmit unsolicited messages, chain letters, unsolicited commercial email, or unreasonably large volumes of email on a daily basis, or to create a false identity or to otherwise attempt to mislead any person as to the identity, source or origin of any communication.
(j) Using the Site to export, import or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses and/or exemptions.
(k) Using the Site or its server as an “open relay” or for similar purposes.
(l) Using the Site for any activity that adversely affects the ability of other people or systems to use the Site or the Internet, including but not limited to using the Website for the dissemination or transmission of any virus, Trojan horse or other malicious, harmful or disabling software, data, work, code, program or for “denial of service” attacks against another website, network or any other person or entity, and/or for interference with or disruption of other websites, services or equipment.
15. Reservation of Rights. We reserve all rights under copyright, trademark and other intellectual property rights in and to the Site in its entirety and all content and functionality of the Site as created by us, including but not limited to titles, trademarks, trade dress, artwork, text, design, audio and visual content, format, configuration, “look and feel,” selection, arrangement and coordination, and all other aspects of the Site excluding only the User Content, all rights to which are reserved by the respective Registered Users subject to the rights licensed to us as set forth above.
16. Indemnity. You hereby indemnify, defend and hold harmless Creative Age and its licensees, successors and assigns, and their respective shareholders, members, directors, officers, partners, joint venturers, principals, subsidiaries and affiliates, and their respective shareholders, officers, directors, employees, partners, associates, affiliates, joint venturers, agents and representatives, from any and all claims, debts, demands, suits, actions, proceedings and/or prosecutions (“Claims”) based on allegations which, if true, would constitute a breach by you and/or your agents, representatives, employees, contractors, or affiliates, of any terms or conditions of the TOU, including but not limited to the representations and warranties set forth above, and any and all liabilities, losses, damages, expenses (including attorneys’ fees and costs) and damages in consequence thereof. You shall give prompt notice in writing to Creative Age of any Claims. No compromise or settlement of any Claims shall be made or entered into without the prior written approval of Creative Age.
17. Cautions and Disclaimers.
17.1 No Endorsement, Sponsorship, Affiliation or Guarantee by Creative Age. We do not endorse, sponsor, or guarantee any of the information, advice, goods, services, or other resources that may be mentioned or made accessible throughout the Site, including but not limited to User Content or comments that may be posted to the Site by users, and we disclaim any responsibility or liability for or to such users. You acknowledge and agree that we shall have no such responsibility or liability.
17.2 Opinions of Users. The opinions and views that may be posted to the Site by users do not necessarily represent those of Creative Age, which does not investigate, verify, endorse, or support the content of such opinions or views. Users are solely and fully responsible for any User Content, including comments and other matter that they post to and/or transmit via the Site. However, we reserve the right to determine what is permissible for inclusion in postings and/or communications transmitted via, or stored on, the Site. We also reserve the right to edit, modify, or remove any content, (including but not limited to text, images, and sound files) submitted to, posted on or transmitted via, the Site and to suspend or eliminate postings and communications by or among users of the Site at any time, for any reason without prior notice.
17.3 No Guarantee Regarding Availability or Quality of Service. The Site may cease to be available, and/or may not operate at peak speed and efficiency, during periods of maintenance and third-party service interruptions and/or by reason of the computer equipment and/or Internet connection of the users and/or for other reasons beyond our control. Accordingly, we make no guarantee regarding the availability or quality of Internet service relating to the Site.
17.5 General Disclaimer of Liability. The Site and the Site Contents are made available to users on an “as-is” basis without warranties or guaranties of any kind, and we disclaim any liability for any injury or damage resulting from the use of the Site, the Site Content, and/or any information, advice, goods, services, or other resources that may be mentioned or made accessible through the Site. You acknowledge and agree that, in connecting to the Site, information will be transmitted over local exchange, inter-exchange, and Internet backbone carrier lines and through routers, switches, and other devices owned, maintained, and serviced by third party local exchange and long distance carriers, utilities, Internet service providers and others, all of which are beyond the control of Creative Age and our vendors and suppliers. Accordingly, we assume no liability for or relating to the delay, failure, interruption, or corruption of the Site and/or the Site Content, or any portion thereof, or any data or other information transmitted in connection with the use of the Site.
To the greatest extent permitted by law, we disclaim all warranties, either express or implied, statutory or otherwise, including, but not limited to, the implied warranties of merchantability, non-infringement of third parties' rights, and fitness for any particular purpose, regarding the Site Content and/or the other goods and services offered by Creative Age.
Creative Age, its licensors, and its vendors and suppliers make no representations, warranties or indemnities about the accuracy, reliability, completeness, correctness, or timeliness of the Site Content, or that the Site and/or the Site Content satisfy any applicable laws or government regulations.
18. Limitations on Liability. The Site and Site Content are made available without warranties, representations or indemnities of any kind whatsoever. CREATIVE AGE, ON BEHALF OF ITSELF AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, PARTNERS, JOINT VENTURERS, PRINCIPALS, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, ASSOCIATES, AFFILIATES, JOINT VENTURERS, AGENTS AND REPRESENTATIVES, SPECIFICALLY DISCLAIMS ANY LIABILITY (WHETHER BASED IN COPYRIGHT, TRADEMARK, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE (EVEN IF CREATIVE AGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). The maximum liability of Creative Age to users based on the claim of any person, firm or corporation arising out of or in connection with the Site and/or the Site Content, shall in no case exceed the actual amounts, if any, paid by the claimant to Creative Age.
19. Take-Down Notices Under the DMCA. We will investigate notices of copyright infringement and take appropriate actions under the Digital Millennium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”). Written notices of claimed copyright infringement must be in strict compliance with all terms and conditions of the DMCA and must be submitted to the following Designated Agent for the Site:
Name of Agent Designated to Receive Notification of Claimed Infringement on behalf of Creative Age: Jonathan Kirsch, Esq.
Full Address of Designated Agent to Which Notification to Creative Age Should be Sent: Law Offices of Jonathan Kirsch, 1880 Century Park East, Suite 515, Los Angeles, CA 90067
Telephone Number of Designated Agent: (310) 785-1200
Facsimile Number of Designated Agent: (310) 286-9573
Email Address of Designated Agent:
20. Termination. The rights granted to Registered Users and any other users of the Site under the TOU shall terminate automatically and without notice as to any such user in the event of any breach or default by the user, and upon such termination, the user shall make no further use of any kind whatsoever of the Site and/or the Site Content. We also reserve the right to suspend, revise and reconfigure, and/or discontinue the Site and/or the Site Content, and/or any of the content or functionality of the Site, in whole or in part, at any time in our sole and absolute discretion.
21. Entire Agreement. The TOU (including any posted items at the Site that are incorporated by reference), as they may be amended or modified from time to time by the us, represent the complete and entire agreement of Creative Age and the users of the Site.
22. Applicable Law. The TOU shall be interpreted, construed and governed in all respects by the laws of the United States of America and the State of California.
23. Modification and Waiver. The TOU may not be modified or altered, and no term or condition may be waived, except by a written instrument signed by an authorized representative of Creative Age. No waiver of any term or condition of the TOU, or of any breach of the TOU or any portion thereof, shall be deemed a waiver of any other term, condition or breach of the TOU or any portion thereof.
24. Severability. If any term or provision of the TOU is found to be unenforceable for any reason, the TOU shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.
25. Notices. Any written notice or delivery under any of the provisions of the TOU shall be deemed to have been properly made by mailing via traceable mail (if a mailing address has been provided to Creative Age) or by email as follows:
If to a Registered User: At the address given by Registered Users at the time of registration.
If to other users: At the address given by or collected from the user, if any, or by posting to the TOU.
If to Creative Age:
c/o Law Offices of Jonathan Kirsch
1880 Century Park East, Suite 515
Los Angeles, CA 90067
27. Binding on Successors. The TOU shall be binding on and inure to the benefit of the heirs, executors, administrators, licensees, successors or assigns of the parties, except that the permission granted to Registered Users to upload User Content and the permission granted to users to access and use the User Content are personal and non-transferable.