GENERAL CONDITIONS OF MEMBER SERVICE
Last updated version: November 23, 2020.
Welcome to the Be Fun Member Website, which you can find at www.befunoficial.com (hereinafter the “Website”). The following General Conditions of Service (hereinafter "CGS") contain the terms and conditions that govern the use of the Website. Any use of the services provided by the artists through Be Fun will be governed by the Be Fun Artist Agreement and its corresponding appendices, and there is a digital copy of it in the ARTIST AGREEMENT . All use of customer services through Be Fun is governed by the Be Fun General Storage Service Conditions. Both access and use of the Website imply acceptance of the Terms and Conditions in their entirety.
Be Fun (a division of Team Target., Together with its licensees and assignees, hereinafter referred to as "we" and "Be Fun") reserves the right to revise these Terms and Conditions at its sole discretion and at any time without prior notification to the user, by publishing the revised CGS on the Website. Any revision of the CGS will take effect once it is published. In the published CGS it will be specified that they correspond to the latest updated version. Consequently, it is up to the user to visit this page periodically to ensure that they continue to accept the present Terms and Conditions. The continued use of the Website after Be Fun has published a revised version of the Terms and Conditions on it constitutes the binding acceptance of said update and the revised Terms. Notwithstanding what is stated in this paragraph, no revision of the CGS will be applied to existing controversies between the user and Be Fun that arose prior to the date of said revision.
1. Use of the Website.
(a) Suitability. Be Fun will only make its Website available to those parties who are known to be able to legally sign and formalize contracts in accordance with applicable legislation. If you are under 18 years of age, but over 13, you can use the Be Fun Website under the supervision of your father / mother or legal guardian once the consent of the previous ones has been given to be bound by these CGS. The Be Fun Website is not directed at children under 13 years of age.
(b) International users: The Website is hosted in the United States of America.
(1) In the case of being a user or client who accesses the Website from the European Union, from Asia or from any other region with specific legislation different from that of the United States of America in relation to obtaining, processing and data disclosure, you should be aware that you will be transferring your personal data to the United States of America, a country that does not have the same data protection laws as the European Union or other regions.
(2) The European Union and the European Economic Area: The Be Fun Website is not directed to minors under 16 years of age who access it from the European Union or from the European Economic Area.
(c) Compliance with the CGS and Applicable Legislation. The user must comply with all the terms and conditions of the present CGS, of the applicable contracts and with all the policies established in this document, as well as with all the laws, rules and regulations applicable to the use of the Be Fun Website .
(d) The License to use the Website.
(1) Be Fun and its licensors are the sole and exclusive owners of all intellectual property and other rights, titles and interests in and on the Be Fun Website, except as expressly provided in these CGS. The user will not be able to acquire any right, title or interest in it under these CGS or by other means.
(2) Be Fun grants you a revocable and limited license to access and use the Website for the purposes provided by it, always subject to compliance with these CGS. This license does not include the right to obtain or use the information contained in the Website for purposes prohibited by Be Fun; nor to create derivative works based on the Products or any other content of any third party available on the Website; nor to download or copy the Website (except screenshots). If the user uses the Website in a way that exceeds the scope of this license, or breaches the CGS, CD Baby may revoke the license granted.
(3) This Clause 1 (d) does not refer to the intellectual property rights of the user. Any right related to the material that the user uploads to the Website is stipulated by the Be Fun Member Agreement LINKED BE FUN CONTRACT
(e) Third Party Services. Be Fun may turn to third parties to provide a series of services through the Website. Be Fun does not exercise control over these third parties, nor over their services and therefore the user accepts that Be Fun is exempt from all responsibility for the use that the user makes of said services. These third parties may, in turn, have their own terms and conditions of use and other types of policies. The user must comply with said terms and policies in addition to these CGS during the use of said services. If any of these terms or policies conflict with the Be Fun GTC, or with its contracts or policies, the user must comply with the Be Fun GTC, contracts and policies.
2. Rules of Use of the Website.
(a) Prohibited Uses. Unless expressly permitted by Be Fun, the user may not: (i) interfere with the Be Fun Website by using viruses or any other program or technology designed to interrupt or damage both the software and the hardware; (ii) modify, reverse engineer, decompile, disassemble or create derivative works of any technology used to supply the Be Fun Website; (iii) use a robot, a spider or any other device or process designed to monitor the activity of the Website or to copy the pages of the same, except in the normal development of the use of a search engine, visitor counters or of some similar technology; (iv) obtain email addresses or other information related to third parties through the Be Fun Website; (v) impersonate another person or entity; (vii) use meta tags (meta tags), search terms, key terms or similar resources that contain the name of Be Fun or one of its trademarks; (viii) participate in any activity that interferes with a third party's ability to use or enjoy the Be Fun Website; or (ix) help or encourage third parties to participate in any of the activities prohibited in these CGS.
(c) Follow-up. Be Fun reserves the right, although it does not assume the obligation, to supervise the transactions and communications that may occur through the Website. If Be Fun considers, in its sole and absolute discretion, that any user of Be Fun has breached a term or a condition of the present CGS, or considers that said transaction or communication is inappropriate, it may eliminate said transaction or take another type of measure tending to restrict access or availability of any material that may be considered objectionable, without any liability arising from the user or third parties.
(d) Modification of the Website. Be Fun may modify its Website at any time and without prior notification to the user, without any liability arising from it for said modification.
When the user sends questions, comments, suggestions, ideas, publications in opinion forums, material sent through a web form, inscriptions in contests, communications or any other type of information (hereinafter the "Contributions"), he grants Be You have permission to use such contributions for your promotional and marketing purposes. The user accepts that Be Fun is excluded from the obligation to preserve the confidentiality of said contributions and the user also agrees not to initiate any claim against Be Fun based on "moral rights" or similar derived from the use that Be Fun has made of a contribution. hers.
4. Representations and Warranties.
(a) Representations and Reciprocal Guarantees. The user and Be Fun declare and reciprocally guarantee: (i) that both the user and Be Fun have both full powers to subscribe and comply with the present CGS, (ii) that the execution and fulfillment of the obligations derived from the present CGS Both for the user and for Be Fun do not constitute a breach or conflict with any other contract or agreement by which the user or Be Fun are bound, and (iii) that these CGS constitute the valid, legal and obligatory agreement between the signing parties. of the same and enforceable in accordance with its terms and conditions.
(b) On the part of the user. The user declares and guarantees to Be Fun that in his use of the Website: (i) he will not infringe the rights of copyright, trademark, patent, industrial secret, right to privacy, right to own image or any other legitimate right third parties and (ii) that it will comply with all laws, rules and regulations. The user, in addition, declares and guarantees to Be Fun: (i) that there are no claims, lawsuits or any other type of pending litigation or that, to their knowledge, there are no threats of the above circumstances arising on any of your Contributions; (ii) that Be Fun will not be required to make any payment to third parties in relation to the use of User Contributions, except for the expenses that Be Fun incurs to provide the Website; (iii) that the use of any of its instructions, formulas, recommendations or similar contained in its Contributions will not cause any damage to third parties; and (iv) that User Submissions do not contain viruses or any other program or technology designed to interrupt or damage both software and hardware.
5. Disclaimers, Exclusions and Limitations.
(a) DISCLAIMER OF WARRANTIES. BE FUN PROVIDES THE WEBSITE AND THE CD BABY SERVICE AS IS AND ACCORDING TO (ITS) AVAILABILITY. BE FUN CANNOT GUARANTEE THAT BOTH THE WEBSITE AND ITS USE: (i) WILL ALWAYS WORK WITHOUT INTERRUPTION, (ii) WILL BE FREE OF ERRORS OR INACCURACIES, (iii) WILL RESPOND TO YOUR NEEDS, OR (iv) THAT IT WILL WORK CORRECTLY WITH THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE USED BY THE USER. BE FUN DOES NOT GUARANTEE MORE THAN EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, AND THEREFORE DISCLAIMS ALL AND ANY IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, THE WARRANTY OF THE MERCHANTABILITY, OR THE MERCHANTABILITY. .
(b) EXCLUSION OF DAMAGES. BE FUN IS NOT LIABLE TO THE USER OR TO THIRD PARTIES FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFIT, LOSS OF DATA, OR LOSS OF RELATED FUNDS) THE USE OF THE CD BABY WEBSITE, REGARDLESS OF THE CAUSE OR ACTION ORIGINATING THEM, EVEN IF YOU HAVE BEEN ADVISED ABOUT THE POSSIBILITY THAT SUCH DAMAGES MAY OCCUR.
(c) LIMITATION OF LIABILITY. EXCEPT FOR THE BREACH OF THE STATEMENTS AND GUARANTEES GIVEN IN THESE GTCS BY SOME OF THE PARTIES OR EXCEPT WITH REGARD TO THE USER'S COMPENSATION OBLIGATIONS, IN NO EVENT WILL THE LIABILITY OF ANY OF THE PARTIES RELATING TO THE PRESENT GTCS EXCEED (i) OR THE AMOUNT PAID OR PAYABLE BY CD BABY TO THE USER IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT CAUSED SUCH LIABILITY (ii) OR 100 US DOLLARS.
The user exonerates Be Fun, its employees, representatives, agents, associates, directors, executives, managers and shareholders (hereinafter the "Parties") in all matters relating to any damage, loss or expense (including, among others, expenses and attorneys' fees) incurred in relation to any claim, demand or litigation by third parties (hereinafter "Claims") that are filed against any of the Parties alleging the breach of any of these CGS. Consequence of this Exoneration Clause is that Be Fun will have the right to manage the defense, the transaction and the resolution of any Claim at the user's expense. The user may not compromise or resolve in any way any Claim without the express written authorization of Be Fun.
(a) Termination. Be Fun may suspend or terminate the use of the Website by the user if it considers, in its sole and absolute discretion, that it has breached any condition or any term of these CGS.
(b) Survival of the contract. These CGS will be valid indefinitely unless (and until) Be Fun decides to terminate them.
(c) Effects of termination of the contract. If the user or Be Fun decide to resolve the use of the Website or any other service, Be Fun will have the power to eliminate all Contributions and other material related to the use of the Be Fun Website that Be Fun has on its servers. or that in some way it has in its possession, without Be Fun responding to the user or third parties.
9. Conflict resolution.
(a) Mandatory arbitration. Please read this carefully as it affects your rights. YOU, BE FUN AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREVIOUS INTERESTORS, SUCCESSORS AND AUTHORIZED ASSIGNMENTS AGREE TO THE ARBITRATION (EXCEPT IN CASES WHICH MAY BE BROUGHT IN COURTS WITH EXCLUSIVE JURISDICTION) DISPUTES, EXCEPT AS PROVIDED BELOW, FOR ALL DISPUTES AND CLAIMS ARISING AS A CONSEQUENCE OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICES. Arbitration is more informal than a trial in court. Arbitration is conducted by a neutral mediator rather than a judge or jury, allows a more limited amount of evidence to be produced than the court, and is subject to very limited review by the courts. Mediators can award the same compensations and damages as a court. Please visit www.adr.org for more information on arbitrations.
(b) Commencement of the arbitration. Any party wishing to request arbitration must first send the other party a written notice of its intention to request such arbitration ("Notice"), or, in the absence of a mailing address, if you have not provided it to BE FUN, it will be sent to you by any other means available to BE FUN, including email. Notifications to BE FUN should be addressed to: [BE FUN / ATTN: Joel Andrew / 9600 NE Cascades Parkway Suite 180 / Portland, OR / 97220] (“Arbitration Notification Address”). The notice must (i) describe the nature and basis of the claim or dispute; and (ii) detail the specific relief sought ("Petition"). If you and Be Fun do not reach an agreement to resolve the claim within 30 days of receiving the notification, you or Be Fun may initiate an arbitration proceeding as set out below or file a claim in court. instance. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ASSOCIATION OF ARBITRATIONS (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CUSTOMER-RELATED DISPUTES (The “Rules”), AS AMENDED HEREIN. The AAA rules and forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the notification address. If you are required to pay a processing fee to initiate an arbitration against Be Fun, then Be Fun will return the money for that fee as soon as Be Fun receives notification at the arbitration notification address, that you have initiated an arbitration together with a proof that proves the payment of said fee, unless your request is equal to or greater than $ 1,000, in which case you will be solely responsible for the payment of said processing fee.
(c) Arbitration Procedure. The arbitration will be held in English. By virtue of the rules, as modified by this agreement, a single independent and impartial mediator will be appointed. You and Be Fun agree to abide by the following rules, which are intended to outline the dispute resolution process and reduce costs and inconvenience for both parties: (i) the arbitration will be conducted by phone, online and / or will be based solely on declarations in writing, with the party initiating the arbitration choosing the specific way to do it; (ii) the arbitration will not require the presence in person of any of the parties or witnesses unless the parties mutually agree otherwise in writing; and (iii) and any judgment on the decision of the mediator may be presented before any court with competent jurisdiction.
(d) No Class Action Lawsuits. YOU AND BE FUN AGREE THAT YOU AND BE FUN MAY SUBMIT A CLAIM AGAINST THE OTHER PARTY ONLY ON AN INDIVIDUAL LEVEL AND NOT AS A PLAINTIFF OR MEMBER OF ANY ALLEGED CLASS OR REPRESENTATION PROCEEDINGS. IN ADDITION, YOU AGREE THAT THE MEDIATOR MAY NOT UNIFY PROCEDURES RELATING TO THE LAWSUITS OF MORE THAN ONE PERSON AND MAY NOT PRESIDE IN ANY OTHER WAY ANY FORM OF COLLECTIVE PROCEDURE OR REPRESENTATION, AND IF THE APPLICATION IS NOT SPECIFICLY APPLICABLE ON MANDATORY ARBITRATIONS SHOULD BE CONSIDERED NULL AND WITHOUT EFFECT.
(e) Award of the Arbitrator. Except in extraordinary circumstances, the arbitrator will issue his award within 120 days of his appointment. The arbitrator may extend this period for another 30 days for the sake of justice. All arbitration proceedings will be confidential and closed, and the proceedings derived from them must be permanently sealed unless the obtaining of a judicial testimony of the arbitration award is required. The arbitrator's award must be issued in writing and must include a reasoned statement resolving all claims. The arbitrator shall apply the laws of the State of California in the conduct of the arbitration proceeding. The user hereby acknowledges that both the present Contract and the use of the Website constitute the verification of the existence of a transaction related to interstate commerce. The Federal Arbitration Law of the United States of America will govern the interpretation, compliance and actions in accordance with the Mandatory Arbitration provision of this Agreement.
(f) Applicable Law. This Agreement and the use of the Website will be governed by the substantive laws of the State of California without reference to the choice of jurisdiction or the principles governing conflicts of laws. In the event that the Mandatory Arbitration provision is null and void, the disputes arising between the user and BE FUN subject to this Agreement will be subject to the exclusive jurisdiction of the Federal and State Courts located in the County of Multnomah, State of Oregon. , and both parties hereby submit to the personal and territorial jurisdiction of said Courts.
(g) Equitable Reparation. The above provisions on this dispute resolution section will not apply to any lawsuit in which Be Fun seeks equitable relief of any kind. You are aware that in the event of non-compliance with this agreement by Be Fun or any third party, the damages, if any, that you may suffer do not give you the right to seek redress by court order or otherwise. of equitable redress against Be Fun, and your only recourse will be to receive monetary damages, subject to the limitations of liability established in this agreement.
(h) Claims. The user and Be Fun agree that, without prejudice to the existence of other rights that a party may have under the law or equity, any cause of action derived from or related to this Agreement or the use of the Website , excluding claims for compensation, must be initiated within the period of one year elapsed from the appearance of the cause of action. Otherwise said cause of action will be definitively prescribed.
(i) Badly filled out claims. All claims you bring against Be Fun must be resolved in accordance with this dispute resolution section. All claims filed or completed contrary to this dispute resolution section will be considered as poorly completed. If you file a claim contrary to this dispute resolution section, Be Fun may recover attorney's fees and court costs up to $ 5,000, as long as Be Fun has notified you in writing that the claim is poorly completed, and you have not withdrawn said claim as soon as possible.
10. Notification and procedure for filing claims regarding infringements of copyright or other intellectual property rights.
(a) Be Fun respects the intellectual property of third parties and takes the protection of copyright and all intellectual property rights very seriously, and consequently we require our users to do the same. Be Fun will not tolerate any activity that infringes such rights on, or through the Website or any other Be Fun service.
(b) Be Fun's intellectual property policy is aimed at (1) removing all material available on the Website, prior notification of the intellectual property owner or its agent, that Be Fun considers in good faith infringes the intellectual property of a third, and (2) withdraw the Products or Contributions published on the Website by “repeat offenders”. Be Fun considers that "repeat infringers" are those users who have published or uploaded Products or Contributions on the Website and from whom Be Fun has received more than two notifications of infringement and withdrawal of copyright in relation to those Products or Contributions, from in accordance with the provisions of the Copyright Law of the United States of America in its provision 17 USC § 512 (c). However, Be Fun has the discretionary power to cancel the user's account or the authorization of access to the same Website if it has received a single notice of infringement, or simply by Be Fun's own decision.
(c) Procedure for Notification of an Alleged Infringement. If the user believes that a Product or Contribution available on or through the Website or any other Be Fun service has been used or exploited in a way that infringes any intellectual property right owned or controlled by them, then As soon as possible, you must send a "Notice of Presumed Infringement" to the Designated Agent specified below. This notification must, substantially, include the following content:
(i) The signature, whether physical or electronic, of the person authorized to intervene on behalf of the owner of the work, or works that have been allegedly violated.
(ii) The identification of the works or material that have been infringed, or, if it is a number of works affected by a single notification, a representative list of said works.
(iii) The identification of the specific material that is allegedly infringing, or that is subject to an infringing activity and that must be or withdrawn or whose access must be disabled, as well as sufficient information to enable the correct location of it by Be Fun.
(iv) Data reasonably sufficient to allow Be Fun to contact the user, such as, for example, the address, telephone number and, where appropriate, an email address where they can be contacted .
(v) A statement by which the user, in good faith, expresses the belief that the use of the material in the manner set forth is not authorized by the copyright owner, its agent, or the law, and
(vi) A statement that the information in the notification is correct, and under penalty of perjury (or perjury) that the claimant is authorized to intervene on behalf of the owner of an exclusive right that is allegedly being infringed.
It is recommended that the user consult with legal counsel and / or refer to United States Copyright Law 17 USC § 512 to ensure what their obligations are when formalizing a Notice of Presumed Infringement so that it is valid.
(d) Contact Information for the Designated Agent. The Be Fun Designated Agent for notifications of alleged infractions can be contacted at:
Via E-mail: firstname.lastname@example.org
Via United States Postal Service: Attn Joel Andrew, 9600 NE Cascades Parkway Suite 180, Portland, OR 97220
(e) Against Notice. If the user receives a notification from Be Fun in which they are informed that any available material contributed by the same to, or through the Website or any other Be Fun service, communicating that said material is subject to a Notification of Presumptive Infringement, the user will have the right to demonstrate before Be Fun by means of a “Counter Notice”. For said Counter Notice to take effect, it must have been submitted in writing and sent to the Agent Designated by Be Fun through one of the channels established in Clause 10 (d) of these CGS, and must, substantially, include the following information:
(i) The physical or electronic signature of the undersigned;
(ii) The identification of the material that has been withdrawn or to which access has been disabled, in addition to the location of said material, the site where it would have appeared before being removed or access having been disabled;
(iii) A statement under penalty of perjury (or perjury) that the undersigned has a good faith belief that the material has been removed or disabled as a result of error or misidentification of the removed or disabled material; Y
(iv) The name, address and telephone number of the undersigned, in addition to a statement stating that the undersigned accepts the jurisdiction of the federal District Courts of the judicial district to which said address corresponds, or, in the event that the The subscriber's address is outside the United States of America, from any judicial district in which Be Fun has its activity, and that the subscriber will accept the notifications in this regard from the person who sent the Notification of Presumed Infringement established in Clause 10 (c) of these CGS or an agent of said person.
It is recommended that the party filing a Contra Notice first consult legal counsel and / or refer to United States Copyright Law 17 USC § 512 to ensure its obligations to provide a valid Counter Notice under the terms of the Referred Copyright Law.
(f) Falsehood of Notifications of Presumed Infringement or Counter-Notices. The aforementioned Copyright Law establishes that:
Anyone who, substantially and on purpose in accordance with the provisions of Article 512 of the Copyright Act (17 USC § 512)] falsely states (1) that the material or activity is infringing, or (2) that the material or activity has been removed or disabled by mistake or misidentification, you will be liable for all damages, including attorneys' fees and expenses, incurred by the alleged infringer, by any copyright owner, or by any authorized licensee of the copyright owner, or by a service provider, who have been harmed by said falsehood, if such damages were the consequence of Be Fun, based on said falsehood, withdrawing or disabling access to the material or activity claimed as infringing, or by having restored the material removed or re-enable access to it.
17 USC § 512 (f). Be Fun reserves the right to claim damages caused by any party that sends a Notice of Presumed Infringement or a Counter Notice in breach of the Law.
To avoid all kinds of doubts, only the notifications submitted under the Digital Millennium Copyright Law and in accordance with the procedures set forth in this Clause 10 will be sent to the Designated Agent, at the postal or electronic address detailed above. , congratulations, complaints or suggestions about Be Fun, the operation of the Website or any other Be Fun service or of any other nature should be sent to email@example.com.
11. Miscellaneous Provisions.
These T & Cs will be binding on the interested parties and their legal successors and authorized assignees, and will be governed by and construed in accordance with the laws of the State of Oregon without reference to general principles of conflict of laws. The user may not assign or transfer these CGS without the prior written consent of Be Fun. Be Fun may freely assign or transfer any of the rights granted by the user to Be Fun by virtue of these CGS. These CGS (including all policies and other Contracts referred to in these CGS and which are hereby incorporated herein in this document) contain the entire agreement between the parties regarding the object of the contract, and supersede all contracts and previous or contemporary agreements between the parties and in relation to the object of the contract. The lack or delay by any of the parties in the exercise of any right, faculty or privilege based on these CGS will not operate as a waiver of them, likewise the singular or partial exercise of any of those rights, faculties or privileges will not preclude any other exercise or the additional exercise thereof or the exercise of any other right, faculty or privilege. The user and Be Fun are independent contractors without any agency relationship, Society or temporary union of companies, and between both parties there is no employment relationship of employer / employee, nor is there the intention to create such relationship based on these CGS. The invalidity and lack of effectiveness of any of the provisions of these CGS will not affect the validity and effectiveness of any other provision of these, which, in its entirety, will be preserved with all its validity and effects. The headings used in these GCS are for convenience and do not constitute part of these GCS, so they cannot be relied upon to limit or affect any of the provisions contained herein.