By accessing, entering, using, viewing or visiting any of the websites or social media services
1. Agreement to Terms. By clicking on “I AGREE” on the registration page of the Website(s), and/or, if and where permitted by applicable law, by accessing the Website(s), the User confirms that he or she has read, understands, “opts in” and agrees to be bound by all of the terms and conditions set forth in the TOU, which shall constitute a binding contract between the User and Butterfly Fish. To the greatest extent permitted by applicable law, clicking on “I AGREE” shall be deemed to be the electronic signature of the User. Whether or not the foregoing is a valid electronic signature, however, the User acknowledges and agrees that his, her or its agreement to be bound by the TOU is a material condition on which Butterfly Fish is relying in granting access to the Website(s), and the User shall be estopped from denying the existence and enforceability of the contract created between Butterfly Fish and the User by clicking on I AGREE. The User’s right to access the Website(s) is conditioned on the User’s agreement to be bound by the TOU. If the User does not wish to be bound by the TOU, the User must exit the Website(s) immediately.
2. Changes in the TOU. Lucido reserves the right to amend and modify the TOU in its sole and absolute discretion from time to time. The User is invited to monitor the TOU as posted at the Website(s) to determine the current terms and conditions of the TOU as they may be changed from time to time. Butterfly Fish will use its best efforts to notify Users if and when the TOU has been changed and to secure the User’s consent to such changes by clicking on “I AGREE.” By accessing the Website(s) after any such notification, and by clicking on “I AGREE” at any time after any such notification, the User ratifies, approves and agrees to be bound by any such changes. If the User does not agree to be bound by the current TOU, the User must exit the Website(s) and cease all use of its content, resources and facilities. The TOU was last revised on April 22, 2020.
3. The Website(s) butterflyfishproductions.com, thekindeez.com, and artbyvincentlucido.com. The Website(s), as the term is used in the TOU, includes but is not limited to: [Insert all websites to which the TOU/PP applies.]
4. Responsibility for Access to the Website(s). The User is solely and strictly responsible for ensuring that his, her or its account information (including but not limited to his, her or its user name and password), equipment, facilities and premises are secure and accessible only to individuals who are authorized by the User to access the Website(s). The User is strictly liable and responsible for all activity and conduct by individuals who access the Website(s) by means of the foregoing, and the User’s indemnity obligations as set forth in Section 16 below shall apply to any such activity and conduct. For that reason, the User is cautioned and encouraged to install, maintain and supervise appropriate security restrictions to control access to the Website(s).
5.3 Parental Consent to Access and Use of the Website(s) By Minors. Parents and guardians of Users who are under the age of 18 hereby acknowledge and agree that it is their sole responsibility to supervise the use of and submission of content to the Website(s) by their children under the age of 18. Contact Lucido at email@example.com to provide Butterfly Fish with legally necessary and verifiable consents, permissions and “opt-ins” from the parents and/or guardians of Users who are minor. Each such User, and each such User’s parents and guardians, expressly acknowledge and agree that Butterfly Fish is entitled to and will rely on the foregoing representations, warranties and agreements of the User in granting access to and accepting submissions from Users who are minors. At a minimum, parents and guardians are required to completed, sign and return a License and Release for Submission of Content by a Minor.
5.4 All Users. Each User represents, warrants, acknowledges and agrees as follows:
(a) User Is Authorized. The User is 18 years of age or older and is authorized and empowered to enter into and perform his or her obligations under the TOU or, if the User is under 18 years, then the parent or guardian of the User has submitted a signed License and Release for Submission of Content by a Minor and verification of his or status as parent or guardian of the User..
(b) User Assures Accuracy in Providing Information. All information provided by the User to Butterfly Fish is current, correct, complete and accurate at the time it is submitted, and the User shall regularly update any and all such information by notice in writing to Lucido in order to ensure that it remains current, correct, complete and accurate.
(c) User Content. Any content submitted by the User to the Website(s) (“User Content”) is owned and controlled exclusively by the User who uploaded or otherwise provided the User Content to Butterfly Fish and can be used by Butterfly Fish and/or its clients as contemplated in the TOU without the knowledge, consent, or approval of any third party, and will not expose Lucido and/or its clients to any liability of any kind whatsoever, including but not limited to claims based on breach, fraud, infringement, misappropriation, impairment, and/or interference with rights under contract, copyright, trademark, false advertising, unfair competition, privacy, publicity, confidentiality, and/or defamation and/or claims based on violation of any law, statute, rule or regulation.
(d) User Content May Not Contain Offensive Material. No portion of the User Content is obscene, lewd, lascivious, filthy, violent, harassing, pornographic, abusive, threatening, criminal, offensive, or otherwise inappropriate or objectionable, and Butterfly Fish shall have the ongoing and unfettered right to review the User Content, monitor the access to and use of the Website(s) by the User, and to refuse or remove any of the User Content that Butterfly Fish deems to be inappropriate or objectionable in its sole and absolute discretion. However, Butterfly Fish does not undertake to screen the User Content, and/or materials provided by third parties, and shall have no duty to do so. Butterfly Fish disclaims any affiliation, sponsorship or endorsement of the User Content and/or any materials submitted by third parties.
(e) User Acquires No Rights. Except as to rights in the User Content owned by the User who uploaded or otherwise provided the User Content to Butterfly Fish, any User who views and/or uses the Website(s) acquires no rights of any kind whatsoever in and to the information, content and materials made available through the Website(s) with the sole exception of the limited license(s) granted by Lucido to the User in Section 6 below.
(f) No Use for Any Purpose Not Expressly Authorized. Users shall not use content accessed at or through the Website(s) materials for any purpose not expressly authorized in the TOU (which incorporates by reference various terms and conditions that are posted at the Website(s)), and shall not share, copy, post, transmit, broadcast, exhibit or otherwise use such materials for any other purpose.
(g) No Copying, Sharing or Posting. By way of example only, and without limiting the foregoing, none of the contents accessed by or through the Website(s) may be copied, shared, and/or posted at any social networking or content-sharing website of any kind whatsoever, including but not limited to, by way of example, Facebook, YouTube, Twitter, etc., except as otherwise provided in the License and Release For Submissions by Minors as to User Content.
(h) No Linking by User. The User may not link from his, her or its websites to any portion of the Website(s).
(i) Prohibited Conduct. The User shall not access or use the Website(s) for any purpose except those specifically authorized by Butterfly Fish. The User, whether alone and/or in conjunction with others, shall not engage in any activity or conduct that results, whether directly or indirectly, in the disruption or interruption of the Website(s); the interference with access and/or use of the Website(s) by other users; the addition, deletion and/or modification of the Website(s); the collection, recording, storage, and/or use of personal data about other users of the Website(s); the breach, or attempt to breach, the security and/or authentication features of the Website(s); the modification, reverse engineering, decompilation, decoding, disassembly or otherwise accessing of the source code used by Butterfly Fish in connection with the Website(s); the linking to the Website(s) in any manner that is false or misleading to the user; the use of the Website(s) to send unsolicited communications, whether personal or commercial in nature; the use of the Website(s)’ domain name(s) as a pseudonymous return email address; and/or the registration or use of any domain name that contains or is confusingly similar to the Website(s) domain name(s). Without limiting the foregoing, and by way of example only, the User may not introduce any viruses, Trojan horses, spyware, or other software of any kind whatsoever, or engage in “flooding,” “spamming,” “spoofing,” “mail bombing,” “crashing,” “framing,” “deep-linking,” or the forgery of any information that states or suggests a false affiliation or origin of emails and other electronic matter.
(j) No Endorsements or Guarantees by Butterfly Fish. The User acknowledges and agrees that Butterfly Fish does not endorse or guarantee any of the content that is made available through the Website(s), and/or any of the Users who may access the Website(s), and/or any third-party advertising or links that may be displayed at the Website(s), and that Lucido shall have no responsibility or liability for such matter or for such persons.
6. Licensing of Rights.
6.1 By the User to Lucido. The User hereby grants a license to Butterfly Fish to generally use the User Content, in whole or in part, alone and/or in conjunction with other materials, but only in connection with the services of Butterfly Fish and its affiliates as made available at in connection with the Website(s) pursuant to the TOU. The license granted by the User to Butterfly Fish is non-exclusive, irrevocable (except as otherwise provided by applicable law), royalty-free, fully transferable and sublicensable, applicable throughout the world, in any and all languages and in any and all media now known or hereafter devised, and shall remain in full force and effect as set forth in Section 10 below. Subject to the rights of Butterfly Fish and its sublicensees under the license granted here and the other terms and conditions of the TOU, and any intellectual property of Lucido that the User may have used in creating the User Content, the User reserves the copyright and all other intellectual rights in and to the User Content.
6.2 By Lucido to the User. Conditioned on the receipt and acceptance of order(s) from the User for the purchase of services from the User as described in Section 7 below, Butterfly Fish hereby grants a limited license to the User to access and use the Website(s) as set forth in the TOU (which incorporate by reference various terms and conditions posted at the Website(s). The User specifically acknowledges and agrees to be bound by special terms, conditions and limitations that may be posted at the Website(s). The license is personal, revocable, non-exclusive, non-transferable and non-sublicensable, conditioned on payment in full of amounts owed by the User to Butterfly Fish, and shall remain in effect as set forth in Section 10 below. Subject to the right of the User to access and use the Website(s) and other products and services of Butterfly Fish as set forth in the TOU, and excluding User Content licensed to Lucido for use at the Website(s), Butterfly Fish reserves ownership of copyright, trademark and all other intellectual property rights in and to the Website(s), their contents, and its other products and services (“Lucido Materials”).
7. Goods and Services to Be Provided by Butterfly Fish. Upon acceptance by Butterfly Fish of any order(s) from the User to purchase goods and services as offered by Butterfly Fish at the Website(s), and receipt of payment in full for such order(s) by Butterfly Fish, and conditioned on the strict compliance of the User with the TOU, Butterfly Fish agrees to provide the goods and services on the terms and conditions and at the prices set forth at the Website(s) and/or any related agreements and other documents in connection with each such transaction, all of which are incorporated by reference in the TOU.
10. Termination. Butterfly Fish shall have the right, at any time and in its sole and absolute discretion, and with or without cause, to terminate the TOU, the User’s access to and use of the Website(s). Upon any such termination, the User shall no longer have the right to access and/or use the Website(s), and/or the other products and services of Butterfly Fish.
11. Modification, Suspension or Cessation of Services. Lucido reserves the right to modify, suspend, and/or cease the operation of the Website(s) and/or the provision of services at any time, without notice and in its sole and absolute discretion, and no such decision by Lucido shall be deemed to be a breach or default of the TOU.
12. Refunds. [If you are selling goods and services at the Website(s), we need to post the refund policy.]
13. Reservation of Rights. Butterfly Fish reserves all rights under copyright, trademark and other intellectual property rights in and to the Butterfly Fish, the Butterfly Fish Materials, the contents (including the selection, arrangement and coordination of contents and the “look and feel”) of the Website(s), its advertising, publicity, and marketing materials in any and all media know known or hereafter devised, and the logos, trademarks, trade dress, formats and other features of its various products and services as published, promoted and otherwise exploited by Butterfly Fish (collectively, “Butterfly Fish Marks”), excluding only such items of intellectual property that may be owned by third parties and are used by Butterfly Fish under license from the rights-holders or pursuant to the Fair Use Doctrine. The license granted to Users in the TOU shall not convey any of the foregoing rights to the User.
14. Take-Down Notices under the DMCA. The Company will receive and evaluate 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 according to the procedures set forth in the DMCA to the following Designated Agent for Butterfly Fish:
Internet Service Provider: Frontier Communications
Hosting Company and Contact: Wix
Name of Agent Designated to Receive Notification of Claimed Infringement on behalf of Butterfly Fish: Jonathan Kirsch, Esq.
Full Address of Designated Agent to Which Notification to Lucido 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: firstname.lastname@example.org
15. Indemnity. The User shall indemnify, defend and hold harmless Butterfly Fish, its shareholders, directors, officers, partners, joint venturers, principals, subsidiaries and affiliates, and their respective shareholders, officers, directors, employees, partners, associates, affiliates, joint venturers, agents, representatives, vendors, contractors and licensors, 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 the User and/or the User’s agents, representatives, employees, contractors, licensees, or affiliates, of any term of the TOU, and any and all liabilities, losses, damages, expenses (including attorneys’ fees and costs) and damages in consequence thereof. The User shall give prompt notice in writing to Butterfly Fish of any Claims. No compromise or settlement of any Claims shall be made or entered into without the prior written approval of Butterfly Fish.
16. Limitations on Liability of Butterfly Fish. The User acknowledges and agrees that he, she or it is accessing the Website(s) at his, her or its own risk. The Website(s), including but not limited to all of its content, features and functions, the other products and services of Butterfly Fish, and/or third-party content, links and advertisements accessible at or through the Website(s), are made available to the User without warranties, representations or indemnities of any kind whatsoever with the sole exception that Butterfly Fish represents that it has relied in good faith on the representations and warranties of Users who have provided User Content to Butterfly Fish. Butterfly Fish makes no representations, warranties or indemnities regarding the completeness, accuracy, currency, suitability, functionality, merchantability, security, suitability for use, accuracy, or effectiveness of the foregoing by Users and shall not be liable for any use in violation of the terms and conditions of the TOU or otherwise. Butterfly Fish further makes no representations, warranties or indemnities regarding the availability, operation or functionality of the Website(s) and/or the facilities by which the Website(s) are accessed and hosted, and shall not be liable for service interruptions, corruption of data, damage to equipment, and/or malfunctions of any kind. BUTTERFLY FISH, ON BEHALF OF ITSELF AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, PARTNERS, JOINT VENTURERS, PRINCIPALS, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, ASSOCIATES, AFFILIATES, JOINT VENTURERS, AGENTS, REPRESENTATIVES, VENDORS, CONTRACTORS AND LICENSORS, SPECIFICALLY DISCLAIM 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 TALENT SUBMISSIONS, THE LUCIDOS, THE WEBSITE(S) AND/OR THE OTHER SERVICES OF BUTTERFLY FISH (EVEN IF BUTTERFLY FISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). The maximum liability of Butterfly Fish and the other persons described above to the User based on any and all claims of any person, firm or corporation arising out of or in connection with the Talent Submissions, Butterfly Fish, the Butterfly Fish Materials, and/or any aspect of the Website(s), and/or any other aspect of the products and services provided or made available by Butterfly Fish, shall in no case exceed the actual amounts paid by the User to Butterfly Fish.
17. 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. Venue for any dispute arising under the TOU shall be in any court of competent jurisdiction in the County of Los Angeles, State of California, and the User hereby expressly submits and consents to such jurisdiction.
19. Modification and Waiver. Except as otherwise provided in Section 2 above, 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 Butterfly Fish. 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.
20. 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.
21. Force Majeure. Butterfly Fish will not be responsible for any delay or failure in performance resulting from any cause beyond its control.
22. Relationship of the Parties. Butterfly Fish and the User acknowledge and agree that they are independently contracting parties dealing at arm’s length with each in connection with the licensing of intellectual property rights and the provision of services. No partnership, joint venture, joint authorship, employment, fiduciary, agency or other relationship is created between them. The User shall not purport to act on behalf of Butterfly Fish in any manner or for any purpose and shall not purport to incur any debt or liability on behalf of Lucido.
If to the User: At the address given by the User at the time of registration and/or the purchase of services from Butterfly Fish.
If to Lucido: PO Box 1211 Redondo Beach, CA 90278
or to such new and different address as may be posted from time to time in the TOU as posted at the Website(s).
With a copy to: Law Offices of Jonathan Kirsch, Attn.: Jonathan Kirsch, 1880 Century Park East, Suite 515, Los Angeles, CA 90067, or such new and different address as may be posted from time to time in the TOU as posted at the Website(s).
24. Headings. Headings and footers are for convenience only and are not to be deemed part of the TOU.
GDPR AND CCPA COMPLIANCE STATEMENT
Notwithstanding any other term or condition of the TOU, Butterfly Fish complies with the applicable provisions of the General Data Protection Regulation of the European Union and the California Consumer Privacy Act regarding personal data collected from Users, including individuals who reside in the European Union.
Lucido is the data controller of the personal data collected from Users.
Users have the right, at any time, to: (a) withdraw their consent to the collection and processing of personal data; (b) access the personal data and rectify, erase or block the data, (c) receive the personal data that Butterfly Fish has collected and to transmit the personal data to another data controller, and/or(c) object to the processing of their personal data without express consent. Users may exercise these rights by contacting Sandra Lucido Data Protection Officer, at Butterfly Fish Productions, LLC.
By clicking on the I AGREE on the registration page of the Website(s), however, Users are also acknowledging and agreeing that (a) Lucido is authorized to transfer their personal data outside the European Union, and (b) because Butterfly Fish is explicitly authorized to make the personal data of some Users to third parties, Butterfly Fish will be able to rectify, erase or block the data that remains under its direct control but may not be able to do the same for personal data that has already been made available to third parties with the consent of the User. By way of example only, once the personal data of a User who is an actor is submitting to a User who is a casting director, Butterfly Fish is not able to withdraw or change the personal data that has been submitted to the casting director.
Butterfly Fish collects and processes personal data only for the specified purposes that are explicitly set forth in the TOU and only to the extent that the collection and processing of personal data is adequate, relevant and not excessive in relation to these purposes.
Butterfly Fish uses its best efforts to assure that personal data is accurate when collected and updated when and where necessary to meet that objective.
Butterfly Fish takes every reasonable step to correct or delete personal data that is inaccurate or incomplete.
Personal data collected by Butterfly Fish is kept for no longer than is necessary for the purposes for which the data was collected or for which it is further processed, and is deleted if and when it is no longer necessary for these purposes.
Butterfly Fish utilizes appropriate technical and organizational measures to protect against loss, alteration and/or unauthorized disclosure of, and/or access to, personal data and/or the unauthorized processing of personal data.