User Agreement – HoopleDoople.com


Effective Date: ___14 August 2008___________

Last Modified: ___14 August 2008___________

I. Preliminary Provisions:

A. Our Site and Services

This User Agreement governs Your use of Our online site and services relating to the incorporation of video web cam communication into the online video game experience. We provide Users with the ability to interact with each other using video, audio and/or text-based communication, while playing online video games. We do not routinely monitor or control the communications engaged in by Our Users. As a result, Our company is protected by various federal laws, including the Communications Decency Act and the Digital Millennium Copyright Act, from liability associated with the content of such communications. While all Users are obligated to abide by Our Acceptable Use Policy, contained herein, We do not censor the substance of User communications, and respect the First Amendment rights of Users to engage in the dialogue and video communications of their choice, so long as the rights of other Users are protected.

B. Party Definitions and Introductory Terms –

1. The operative parties referred to in this Agreement are as follows:

a. Us, the Publisher – Brain Housing Group, Inc., is the publisher of the website located at http://www.hoopledoople.com. In this agreement, when first-person pronouns are used in this Agreement (Us, We, Our, Ours, etc.) they are referring to this entity and publisher of the applicable website. This entity may also be referred to as “Publisher” from this point forward. Additionally, when the terms “The Site” or “Site” are used, these terms refer to the aforementioned website.

b. You, the User – As the User of this Site, this User Agreement will refer to the User as “You” or through any second-person pronouns, such as “Your,” or any derivation thereof. Hereinafter, the User of the Site shall be referred to in applicable second-person pronouns.

c. User vs. Member – For the purposes of this Agreement, all Members are Users, but not all Users are Members. This Agreement applies to all Users whether they are Members or not. You become a User by accessing this Site in any way. You need not become a Member of the Site to make this Agreement apply to You. Membership is free, but members receive certain additional privileges and must adhere to certain additional obligations.

2. Consideration – Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Site and Our Services. You agree that such Consideration is adequate, and that it is received upon Your viewing, accessing or downloading any portion of any of the Publisher’s website(s).

C. What This Agreement Is – This Agreement is a legal contract between You and the Publisher. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the Site in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this User Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site and any other services provided by the Publisher.

D. Electronic Signatures / Assent Required – Nobody is authorized to access this Site unless they have signed this Agreement. Such signature does not need to be a physical signature, since this Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-SIGN Act). You manifest Your agreement to this User Agreement by taking any act demonstrating Your assent thereto. Most likely, You will click a button containing the words “I agree” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You have not yet done so, You must immediately click here www.hoopledoople.com/signup.html to electronically sign this Agreement.

If You fail to sign this Agreement, You understand that You are an unauthorized User of the Site, despite any payments made or subscriptions sold to You. No act or omission by the Publisher should be interpreted as a waiver of the requirement that You assent to this User Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your accessing the Site or using any portion of the Site or Publisher’s Services. However, if You fail to electronically sign this Agreement, You stipulate to and agree to pay the Publisher $250.00 each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including Attorney’s fees and costs, incurred in collecting this unauthorized access fee from You.

E. Revisions to this User Agreement –

1. From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.

2. We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page on a regular basis; but no less often than weekly, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed, and You agree that You will re-review the Agreement in its entirety and that You will agree to its terms or immediately cease use of any websites covered by this Agreement.

3. Waiver - If You fail to re-review this Agreement as required to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review and object to the amended terms, which are then automatically incorporated into the Agreement You originally signed. We are not responsible for Your neglect of Your legal rights.

F. Access to the Site and Services – You understand that all We are selling You is access to Our services as We provide them from time to time. You need to provide Your own access to the Internet, your own web cam, computer and communication device(s), and any fees that You incur to access Our Site are Your sole responsibility. We are not providing any hardware nor software to You – and You need to purchase or license the necessary hardware and software to access the Site.

G. Creation of Account -- In order to access some features of the Site, You must create an account. You may never use another person’s account without express written permission from the account holder. When creating Your account, You must provide accurate and complete information. You are solely responsible for the activity that occurs on Your account, and You must keep Your account password secure. You must notify Us immediately of any breach of security or unauthorized use of Your account. Although We will not be liable for Your losses caused by any unauthorized use of Your account, You may be liable for Our losses due to such unauthorized use.

II. Access Terms and User Status:

A. Access and Limited License – All Users may access certain public areas of the Site. This User Agreement covers all public and non-public areas of the Site.

1. Subject to all of the terms and conditions of this User Agreement, the Publisher grants You a limited, nonexclusive, nontransferable personal license to access and use the Site and the Services provided therein. Publisher provides the Services on this Site for the personal, non-commercial use by Users, Members, viewers, fans, visitors, subscribers and/or potential subscribers of said Site. Users of this Site are granted a single copy license to view any Materials appearing on the Site, (on a single computer only). All Materials and Services available on the Site shall be for private non-commercial use only, and all other uses are strictly prohibited. Publisher reserves the right to limit the amount of materials viewed and/or bandwidth consumed by any User or Member. You agree to prevent any unauthorized copying of the Site, or any of the Materials contained therein. Any unauthorized use of the Site or any of the Materials contained therein terminates this limited license effective immediately. This is a license to use and access the Site for its intended purpose and is not a transfer of title. You will not copy or redistribute any of the content appearing on this Site. Publisher reserves the right to terminate this license at any time if You breach or violate any provision of this Agreement, in which case You will be obligated to immediately destroy any information or materials You have downloaded, printed or otherwise copied from this Site. Violators of this limited license may be prosecuted to the fullest extent under the applicable law.

B. Fees for Users and Non-Members – You agree that the Site and its services are provided on an a la carte basis. Each and every time You access, without first registering as a member, a non-public portion of the Site, You agree to pay a fee of $100.00 per day of access, and $10.00 per page view. You also agree to pay $5.00 for each still image viewed, and You agree to pay $25.00 for each video clip viewed. You agree that if Your actual usage cannot be determined, that You will be billed an estimated amount. You agree and stipulate that if You disagree with Our estimated bill, You shall have the burden of proof in any court proceeding (or arbitration, or other dispute resolution process) to demonstrate that Our billing is sufficiently inaccurate to warrant a reduction in charges. You agree that if Your bill is not reduced by the tribunal by more than 25% of the billed amount, then You will pay all of Our expenses incurred in participating in the dispute, including all applicable fees and costs billed by Our Attorneys. Even if Your bill is so reduced, You may be required to pay Our Attorneys’ fees by operation of other portions of this Agreement or by operation of law.

C. Membership – Registration and membership in this Site are free. Failure to register and obtain membership in the site prior to accessing any members’ only section of the Site will subject the User to the charges referenced above. The following provisions pertain to Your membership in HoopleDoople.com:

1. You understand that the requirements of Membership are greater than simply registering and submitting the requested information. It is a condition of Membership that all of the information You provide during Your signup process, and in any other interaction with Us, shall be correct, current, truthful, and complete. If You provide any false, misleading, incomplete, or otherwise incorrect information to Us, Your Membership will be considered null and void – and You will be responsible for all billing for all of Your access to Our services, as referenced above. We have the right to terminate Your Membership at any time, but You understand that all billing is retroactive if You are terminated for cause, including provision of any information that is not current, truthful, and complete.

2. Membership may never be assigned, transferred, or sold to a third party. Membership is a single-user license. You are not authorized to share any of Our Materials with any person who does not have their own membership. If You do so, both You and the unauthorized viewer/User are jointly and severally liable for any fees generated by unauthorized access to membership areas.


III. Special Considerations Regarding Minors:

A. Age of Majority & Minors – While this Site is available to users of all ages, membership in the Site is restricted to Users age 13 and older. No personal information will knowingly be collected from Users under the age of 13 in compliance with COPPA (“Child Online Privacy Protection Act”). Moreover, the Publisher reserves the right to designate certain content or areas as ‘Restricted to Adults’ only. In order to use such areas of the Site, You must have attained the age of majority in Your jurisdiction. Before accessing such content, You represent and warrant that You are at least eighteen (18) or twenty-one (21) years of age, depending on the age of majority in Your jurisdiction, and that You have the legal capacity to enter into this Agreement. If You are not at least eighteen (18) or twenty-one (21) years of age, depending on the age of majority in Your jurisdiction, You must refrain from accessing such content or services designated as ‘Restricted to Adults.’

1. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age.

2. You represent and warrant that You will not allow any minor access to this Site or its Services that are Restricted to Adults. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help Users to limit minors’ access to harmful material. As a condition of accessing content that is Restricted to Adults, You may be asked to provide information regarding your Date of Birth, under penalties of perjury, using a patented age verification form called the BirthDateVerifier.TM You agree to submit accurate information when using this device, or any other age verification device implemented by the Publisher. You acknowledge that if Your computer can be accessed by a minor, that You will take all precautions to keep age restricted Materials and Services from being viewed by or accessed by minors. While We may take steps to prevent minors from accessing such Materials on Our Site, You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to keep age restricted content from being displayed to Your children or wards.

B. Solicitation of Personal Information from Minors – From time to time the Publisher may request personal identifying information from the User to create a membership profile or assist in enhancing the user experience. However, the Publisher will not knowingly collect, use or disclose personal data from a minor under the age of 13 without prior consent from a person with parental responsibility (a parent or guardian) through direct, off-line contact. Membership in this Site is not intended for Users under the age of 13. Please do not attempt to submit personal information or apply for membership in the Site if you are under 13 years of age.



C. WE HAVE A ZERO TOLERANCE POLICY FOR NUDITY, SEXUALLY- EXPLICIT IMAGERY, OR CHILD PORNOGRAPHY, AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIAC ACTIVITY.

1. You acknowledge and agree that this Site and its Services are available to users of varying ages. Under no circumstances shall users engage in any nudity while appearing on camera. This includes total or partial exposure of the genitals, buttocks, or any portion of the female breast below the top of the areola. Moreover, users are absolutely prohibited from engaging in any erotic or sexually-explicit or suggestive conduct while on camera Users violating this restriction will be suspended or terminated from any further participation in the Site. The Publisher cooperates with law enforcement with respect to the investigation and prosecution of any individual seeking to solicit or entice minors into nudity or sexual activity, and any such conduct will not be tolerated on the Site.

2. If You seek any form of child pornography (including so-called “virtual” child pornography), or sexual activity with minors, You must exit this Site immediately. We do not provide this kind of material or activity, and We do not tolerate those who provide this kind of material, or customers of this material, or those who prey on minors for sexual gratification.

3. In order to further Our zero-tolerance policy, all Users agree that You will report any misuse of Our services. If You see any images, web cams, or other depictions that involve nudity or sexual activity, You agree to report these images by emailing Us at support@hoopledoople.com

4. Include with your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken.

5. We enthusiastically cooperate with any law-enforcement agency investigating lewd activity, distribution of harmful materials to minors, child pornography, and Internet predation on minors. If You suspect other outside websites are participating in unlawful activities involving minors, please report them to http://www.asacp.org.

IV. Images and Content:

A. Our Site contains images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, operated, licensed, or controlled by the Publisher (collectively, “Materials”) as well as user generated images, communications, messages, text, and web cam video (“User Generated Content”) which is provided by third parties. User Generated Content is constantly changing, and of a transitory nature.

B. You acknowledge and stipulate that all of the Materials and User Generated Content are expressive media that are fully protected by the First Amendment to the United States Constitution.

C. You acknowledge and understand that the User Generated Content may be offensive to some Users. While the Site prohibits erotic and/or pornographic depictions, we cannot control the activities of all users at all times. You acknowledge that You are aware of the dynamic and ever-changing nature of the User Generated Content published by the Publisher and that You are not offended by such User Generated Content, and that You access the Site freely, voluntarily, and willingly, and for Your own personal enjoyment.

D. If You are seeking information regarding any illegal activities, please leave this Site immediately. You acknowledge that You are aware of the community standards in your community, and You will only access the content on the Site if You believe that the content on the Site does not offend the community standards prevalent in Your community.

E. You agree not to use or access the Site if doing so would violate the laws of Your city, county, state, province, or country.

V. User Generated Content Submissions

A. Requirements and Restrictions on Submissions
1. Our Site currently permits the submission and transmission of User Generated Content by You and other Users and the hosting, sharing, and/or publishing of such User Generated Content. You understand that whether or not such User Submissions are published, Publisher does not guarantee any confidentiality with respect to any submissions.
2. You shall be solely responsible for Your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, You affirm, represent, and/or warrant that:
a. You own or have the necessary licenses, rights, consents, and permissions to use and authorize Us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Generated Content to enable inclusion and use of such content in the manner contemplated by the Website and this Agreement; and
b. You have the written consent, release, and/or permission of each and every identifiable individual person depicted in any User Generated Content to use the name and likeness of each and every such identifiable individual person to enable inclusion and use of the User Generated Content in the manner contemplated by Our Site and this Agreement. For clarity, You retain all of Your ownership rights in Your User Generated Content. However, by submitting the User Generated Content to Us, You hereby grant Us a worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Generated Content in connection with Our Site and Our (or Our successor’s) business, including without limitation for promoting and redistributing part or all of the Publisher’s Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of Our Site a non-exclusive license to access your User Generated Content through the Site, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Generated Content as permitted through the functionality of the Site and under this User Agreement.
5. General Restrictions on Use of the Site
a. You also agree to immediately cease and desist from any contact with any person who so requests such cessation;
b. You agree that You will not use Our services to “stalk” or otherwise harass any other person;
c. You agree that You will not use Our services in order to collect any personal data about other Users;
d. You agree that You will not use Our services in order to conduct any illegal activities at all;
e. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive child pornography in any way;
f. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way;
g. You agree that You will not post advertisements or solicitations of business (legal or not).
h. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive drugs or other illegal substances in any way;
i. In Our sole discretion, We may choose to provide You with a warning before assessing damages, but We are not required to do so.
j. We may, in Our sole discretion, assign any such damage claim to a third party who has been wronged by Your conduct.
k. These liquidated damages are not a penalty, and they are an attempt by the parties to reasonably ascertain the amount of actual damage that could occur from such violations. Both parties hereby agree that these amounts are a minimum, and actual damages may be more.
l. Any violation of Our Acceptable Use Policy as provided for in this Agreement shall subject You to liquidated damages of $5,000.00 for each and every violation. In the event that such violation causes any legal, emotional, or physical harm to another person, You agree that You shall pay one hundred thousand dollars ($100,000.00) in liquidated damages.
m. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Site in a manner that sends more request messages to Our servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, We grant the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. We reserve the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Site, nor to use the communication systems provided by the Site for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any Users of the Site, for any purpose.

VI. Acceptable Use Policy – Restrictions on User Content and Activities:

A. You agree that You will only use the Site for purposes expressly permitted and contemplated by this User Agreement. You may not use the Site for any other purpose without Our express, prior written consent. To assist You in understanding what kinds of activities and materials are problematic, and therefore prohibited by Us, We have created the following Acceptable Use Policy.

B. We are entitled to investigate Your activities and communications, and terminate Your membership if You have misused the Site, or behaved in a way which could be regarded as inappropriate, unlawful or illegal. The following is a partial, but not exhaustive, list of the types of actions that are illegal or prohibited under this Agreement:

1. You will not impersonate any person or entity in your communications.

2. You will not “stalk” or otherwise harass any person, and if any Member or other person requests that You cease communications with them, at any time, for any reason, You will immediately comply with said request. Further, You stipulate to liquidated damages of $50,000.00 per such violation, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys’ fees and all associated costs. We expressly reserve the right, and You stipulate, that We may assign the rights to sue for these liquidated damages to any third party, including the party stalked or otherwise harassed by such violation.

3. You will not post on this Site any private, personal information such as address, phone number, or any other private identifying information, about anyone other than Yourself, without first obtaining that person’s written consent. Further, You stipulate to liquidated damages of $50,000.00 per such violation, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys’ fees and all associated costs. We expressly reserve the right, and You stipulate, that We may assign the rights to sue for these liquidated damages to any third party, including the party claiming injury by such violation.

4. You will not express or imply that any statements You make are endorsed by Us, without Our specific prior written consent.

5. You will not use any portion of the Site or Our services to promote any other business enterprise, nor will You attempt to use any of Our services to promote an escort service, prostitution, web-cams, or any other form of related commercial enterprise.

6. No Pornography or Erotic Content: You will not transmit, upload or present any conduct or depiction that involves nudity or sexual activity of any kind. As some of the Site’s Users are minors, such activity is inappropriate and criminal in some instances. Moreover, Users may not transmit, upload or present any conduct or depiction that is obscene, or which involves any of the following activities: Defecation, Coprophilia a/k/a Fecophilia (scat); Urination (peeing); Rape (non-consensual sexual activity); Vomit; Menstruation; Lactation (breast milk in a sexual context); Actual violence or harm to persons or animals; Actual illegal drug use; Torture; Necrophilia (sex with dead bodies); Asphyxiphilia or Hypoxiphilia (choking during sex); Bestiality (sex with animals); animal abuse, Pedophilia or Child Pornography; Virtual Child Pornography (sex with adults presented as children) or any other conduct which has been determined to be obscene by a state or federal court.

7. You will not reveal any information that is classified or which may impact national security concerns.

8. You will not use any “hate speech” including but not limited to racial slurs or epitaphs that may be considered offensive to a particular racial or national group, or any speech intended to incite others to violence, any speech associated with advocating terrorism or recognized terrorist groups, or “fighting words.”

9. You will not defame or present any false statement of fact or misrepresentations about any other person, without their prior written consent.

10. You will not publish or distribute any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, invasive of another’s privacy or right to publicity, or harmful to minors in any way, shape, or form.

11. You will not publish or distribute any content that constitutes SPAM or bulk posting of commercial advertisements for commercial interests.

12. You will not publish or distribute any content that infringes on trademark, copyright, or other intellectual property rights of any party. Your User Generated Content must be owned by You or You must have full legal authority and permission to post it from the owner.

C. Without Our express, prior written authorization, You may not:

1. Duplicate any part of the Site or the Materials contained therein (except as expressly provided elsewhere in this Agreement);

2. Create any derivative works based on the Site or any of the Materials contained therein, and You agree and stipulate that any and all derivative works are NOT “fair use;”

3. Use the Site or any of the Materials contained therein for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT “fair use;”

4. Redistribute the Site or any of the Materials contained therein, and You hereby agree and stipulate that any and all such uses are NOT “fair use;”

5. Remove any copyright or other proprietary notices from the Site or any of the Materials contained therein;

6. Frame or utilize any framing techniques in connection with the Site or any of the Materials contained therein;

7. Use any meta-tags or any other “hidden text” using the Site’s name or marks, and You hereby stipulate that any use of the Site’s name or marks, or any other marks owned by the Publisher is an infringement upon the Publisher’s trademark rights. Further, You stipulate to liquidated damages of $5000.00 per such infringement, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys’ fees and all associated costs.

8. “Deep-link” to any page of the Site (including the homepage), or avoid agreement to the Site’s Terms & Conditions; You may only link to the main entry page;

9. Circumvent any encryption or other security tools used anywhere on the Site (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of the Site);

10. Use any data mining, bots, or similar data gathering and extraction tools on the Site;

11. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law;

12. Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of Your rights to access and use the Materials as granted specifically by this Agreement; or

13. Bookmark any page of the Site beyond the registration log-in screen.

D. You agree to cooperate with the Publisher in causing any unauthorized use to cease immediately. You are solely responsible for submitting any material that violates any United States or International laws even if a claim arises after your service is terminated, and by doing so, Your actions shall constitute a material breach of this Agreement and the Site shall terminate all of Your rights under this Agreement.

E. Interference – Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of the Publisher’s Materials or any other Materials from Our Site. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it. If You do not adhere to this provision of this Agreement, You hereby stipulate to and agree to pay liquidated damages of $5000.00 plus any and all fees associated with recovery of these damages, including attorneys’ fees and costs.

F. Stipulated Liquidated Damages –

1. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.

2. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of $100.00 per occurrence. You specifically agree to pay this $100.00 in liquidated damages.

3. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.

G. Enforcement of Acceptable Use Policy –

1. We reserve the right to enforce the above-stated Acceptable Use Policy in any manner We determine to be reasonable and commensurate with the offense, including but not limited to warning, suspension of services and/or termination of Your account. In the event of a termination for breach of this Agreement, all membership fees paid to Us shall be forfeited, in addition to any other remedy provided for by this Agreement, including imposition of liquidated damages.

2. Any determination of appropriate remedy for violation of the Acceptable Use Policy shall not constitute a precedent or policy, and shall not be considered a waiver of Our rights to impose different remedies for the same or similar conduct by You or any other User.

VII. DISCLAIMER OF WARRANTY:

A. You expressly agree that use of, and access to, the Site, the Materials, and/or the User Generated Content contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site or any of the materials contained therein is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.

B. The Site and all materials contained therein are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.

C. Publisher makes no representations or warranties that the Site or any materials contained therein will be uninterrupted, timely, secure, or error free; nor does Publisher make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site or any of the materials contained therein.

D. You understand that Publisher cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. Publisher does not assume any responsibility or risk for Your use of the Internet.

E. Publisher makes no warranty regarding any goods or services purchased or obtained through the Site or any transaction entered into through the Site and is not responsible for any use of confidential or private information by sellers or third parties.

F. Publisher may change any of the information found on this Site at any time without notice including this User Agreement without notice. Site owner makes no commitment to update the information found at this Site. Site makes no commitment to update the materials.

G. The warranties and representations set forth in this Agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person.

VIII. DISCLAIMER AND INDEMNIFICATION:

A. The provision of any services which is in violation of any laws is strictly prohibited. If We determine that You or any User has provided or intends to purchase or provide any products or services in violation of any law, Your ability to use the Site will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any User providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify, and hold Us harmless from any liability that may arise for Us should You violate any law.

B. You also agree to defend and indemnify Us should any third party be harmed by Your illegal actions or should We be obligated to defend any claims including, without limitation, any criminal action brought by any party.

C. Our Site contains material that may be offensive to third parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material if submitted or generated by You, and You agree to cease viewing of the Site should You find it offensive.

D. You agree to defend, indemnify, and hold harmless the Publisher, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your (or while under another person’s authority including without limitation to governmental agencies), use, misuse, or inability to use the Site or any of the Materials or User Generated Content contained therein, or Your breach of any part of this User Agreement. Publisher shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but are not obligated to do so.

IX. LIMITATION OF LIABILITY:

A. In no event shall Publisher (or its licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person’s use, misuse, or inability to use the Site or any of the materials contained therein, even if Publisher has been advised of the probability of such damages. This is for any matter arising out of or relating to this Agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if Publisher has been advised of the possibility of such damages.

B. In no event shall Publisher’s maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of the Site for a period of no more than one (1) month from the accrual of the applicable cause or causes of action. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.

X. LINKS AND LINKING:

A. Some websites which are linked to the Site are owned and operated by third parties. Because the Publisher has no control over such websites and resources, You acknowledge and agree that Publisher is not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.

B. You further acknowledge and agree that Publisher 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 use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third-party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.

C. Users further acknowledge that use of any website controlled, owned, or operated by third parties is governed by the terms and conditions of use for those websites, and not by this Site’s User Agreement. We encourage You to educate Yourself regarding the legal requirements and contracts associated with any website You choose to visit.

D. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by the Publisher of such websites or the content, products, advertising, or other materials presented on such Site, but are for User's convenience.

E. All Users do hereby agree to hold the Publisher harmless from any and all damages and liability that may result from the use of links that may appear on the Site. The Publisher reserves the right to terminate any link or linking program at any time.

XI. TRADEMARK and Patent INFORMATION:
A. Publisher company name, and the aforementioned name of the Site, are service marks and/or trademarks of the Publisher. We aggressively defend Our intellectual property rights, and will pursue all infringers.
B. Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
C. All of the marks, logos, domains, and trademarks that You find on the Site may not be used publicly except with express written permission from Publisher, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Publisher.
D. The Publisher retains and exclusively reserves all rights under patent law to its unique business model. All imitators are encouraged to retain legal advice before duplicating the Services provided by the Site.
XII. COPYRIGHT INFORMATION:

A. The Materials accessible from the Site, and any other World Wide Website owned, operated, licensed, or controlled by Publisher, are the Publisher’s proprietary information and valuable intellectual property and We retain all right, title, and interest in the Materials. By uploading, displaying or transmitting any images, video, text, graphics, or audio content or communications (i.e., User Generated Content) on or through Our Site, You thereby contemporaneously provide Us with a perpetual, worldwide non-exclusive license to display, publish, republish or reproduce such content or communications on the Site, or in any other media or venue owned or operated by Us. Do not transmit any information through Our site that You desire to keep private. Our Site is a publicly-accessible venue, and many other Users will be able to view Your image, content and communications. You specifically acknowledge that We have the right to use all such images, content and communications at any time in the future, in any context, without additional consideration.

B. The Materials or User Generated Content may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of Publisher, except that You may print out a copy of the Materials or User Generated Content solely for Your personal use. In doing so, You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Materials or User Generated Content.

C. Modification or use of the Materials or User Generated Content except as expressly provided in this User Agreement violates the Publisher’s intellectual property rights.

D. Neither title nor intellectual property rights are transferred to You by access to the Site.

E. All Materials included on the Site, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations, and software are the property of the Publisher or its content suppliers and is protected by United States and international copyright laws. The compilation of all Materials on the Site is the exclusive property of the Publisher or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations. © Brain Housing Group, Inc., (2008), all rights reserved.

XIII. NOTICE OF CLAIMED INFRINGEMENT:

The Publisher respects the intellectual property of others, and We ask Our Users to do the same. We voluntarily observe and comply with the United States’ Digital Millennium Copyright Act. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Publisher’s Designated Copyright Agent the following information:

A. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

B. Description of the copyrighted work or other intellectual property that You claim has been infringed;

C. A description of where the material that You claim is infringing is located on a Site;

D. Your address, telephone number, and email address;

E. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

F. A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

G. You may send your Notice of Claimed Infringement to Our Designated Agent:

Lawrence G. Walters, Esq.
Weston, Garrou, Walters & Mooney
781 Douglas Avenue
Altamonte Springs, FL 32714
Fax: (407) 774-6151
Notice@DMCANotice.com

Please do not sent other inquires or information to Our Designated Agent.

XIV. NOTICE AND TAKEDOWN PROCEDURES:

The Publisher implements the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement:

A. The Publisher reserves the right at any time to disable access to, or remove any material or activity accessible on or from the Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.

B. It is the firm policy of the Publisher to terminate the account of repeat copyright infringers, when appropriate, and the Publisher will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act (“DMCA”). The Publisher’s DMCA Notice Procedures are set forth in the preceding paragraph. If the Notice does not comply with Paragraph 19 and §512 of the DMCA, but does comply with three requirements for identifying Site that is infringing according to §512 of the DMCA, the Publisher shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with notice requirements.

C. When the Designated Agent receives a valid Notice, the Publisher will expeditiously remove and/or disable access to the infringing material and shall notify the affected User. Then, the affected User may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the User has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within ten to fourteen (10-14) days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity.

XV. EXPORT CONTROL:

A. You understand and acknowledge that the software elements of the Materials on the Site may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States’ or international law is prohibited.

B. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.

C. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that You will abide by such laws and regulations.

D. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.

XVI. NO AGENCY RELATIONSHIP:

Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.

XVII. NOTICE:

A. Notice – Any notice required to be given under this Agreement by Publisher to You, may be provided by email to a functioning email address of the party to be noticed, by general posting on the Site, or personal delivery by commercial carrier such as Federal Express or Airborne. Notices by customers to Publisher shall be given by electronic messages unless otherwise specified in the Agreement.

B. Change of Address – Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.

C. When Notice is Effective – Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number, and/or recipient for any notice or courtesy copy, hereunder.

D. Refused, Unclaimed, or Undeliverable Notice – Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
XVIII. COMMUNICATIONS NOT PRIVATE:
Unless otherwise designated by the Publisher as private, all communications occurring on the Site are public and available to other Users. All messages transmitted to Publisher shall be deemed to be readily accessible to the general public. Visitors should not use this Site to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read or view. Notice is hereby given that all messages entered into this Site can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.

XIX. FORCE MAJEURE:

Publisher shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s performance.

XX. GENERAL PROVISIONS:

A. Governing Law and Venue – This User Agreement and all matters arising out of, or otherwise relating to, this User Agreement shall be governed by the laws of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all disputes must be, without exception, resolved through arbitration or litigation, as permitted elsewhere in this Agreement, in Orange County, Florida.

1. All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.

2. The parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.

3. The parties agree to exclusive venue in, and only in, Orange County, Florida.

4. The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.

5. All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.

6. All parties stipulate that the state and federal courts located in Orange County, Florida shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.

7. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.

8. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.

B. Rights to Injunctive Relief – Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.

C. Binding Arbitration – If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker’s compensation law, unemployment insurance claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Orange County, Florida, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes.

D. Restrictions on Arbitrator and Parties: The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this User Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.

E. No Waiver of Right to Arbitration – There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.

F. The First Amendment Applies to Arbitration Proceedings – Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.

G. Assignment – The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.

H. Severability – If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this User Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this User Agreement will continue in full force and effect.

I. Complaints – California Residents
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/online_services/complaints/consumer_complaint.shtml

J. No Waiver – No waiver or action made by the Publisher shall be deemed a waiver of any subsequent default of the same provision of this User Agreement. If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this User Agreement.

K. Headings – All headings are solely for the convenience of reference and shall not affect the meaning, construction, or effect of this User Agreement.

L. Complete Agreement – This User Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Site and the Materials contained therein, and Your Membership with the Site, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.

M. Other Jurisdictions – Publisher makes no representation that the Site or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site from such locations do on their own initiative and are solely responsible for determining compliance with all applicable local laws.

This document was prepared by: Lawrence G. Walters, Esq., of www.FirstAmendment.com.