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Rosenthal – The Malibu Estate – Terms of Use

Terms of Use

Effective date: October 30, 2020

1.     Introduction and Overview.

These Terms of Use (“Terms”) set forth a legally binding agreement between you and –Rosenthal - The Malibu Estate (“Rosenthal - The Malibu Estate”, “us”, “we” or “our”), and govern your use of  any online service location that posts a link to these Terms, including rosenthalestatewines.com, and all features, content and other services that we own, control and make available through such online service location (collectively, the “Sites”).

When using particular services or features of the Sites, including making an online reservation  for an event or table at the Tasting Room or an event at the Vineyard, both these Terms and a separate contract (“Additional Terms’) may apply to your use of that service or feature of the Sites. To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITES, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS AND OUR PRIVACY POLICY, DISCONTINUE USE OF THE SITES. YOU AGREE TO THESE TERMS AND OUR PRIVACY POLICY, BY ACCESSING OR USING ANY OF THE SITES.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “GOVERNING LAW; DISPUTES; ARBITRATION” SECTION BELOW, AND IF YOU DO NOT OPT-OUT AS SET FORTH IN THAT SAME SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND ROSENTHAL - THE MALIBU ESTATE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION. SUBJECT TO THE EXCEPTIONS AND OPT-OUT PROVISIONS IN THAT SECTION, THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE AND BY ACCESSING OR USING THE SITES AND NOT OPTING OUT OF THESE PROVISIONS, YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION.

If you are using any of the Sites on behalf of a business or legal entity (such as your employer) (an “Entity”), you represent and warrant that you have the legal right and authority to (a) enter into these Terms on behalf of the Entity, (b) grant the rights and licenses described in these Terms on behalf of the Entity, and (c) bind the Entity to these Terms. You acknowledge and agree that these Terms will operate as an agreement between Rosenthal – The Malibu Estate and the Entity; and that references to you in these Terms shall refer to the Entity and its affiliates. If you do not have such legal right and authority on behalf of the Entity, you may not use the Sites.

2.     Ownership of Materials on the Sites.

The Sites include all materials that comprise or are otherwise a part of the Sites, including, without limitation: graphics; layout; text; instructions; images; graphs; charts; databases; articles; posts; files; trademarks; trade names; trade dress; logos, service marks; software (including HTML-based programs); audio; animations; videos; designs; technology; applications; scripts; interactive features; artwork; information; data; reports; designs; compilations; advertising copy; domain names; any and all copyrightable material (including source and object code); the “look and feel” of the Sites; the compilation, assembly and arrangement of the materials of the Sites; and all other materials related to the Sites (collectively, “Materials”).

The Materials are owned by or licensed to Rosenthal – The Malibu Estate and are protected by U.S. and international copyright, trademark, trade dress, patent, and/or other laws, rules, regulations and treaties. Except as expressly set forth in these Terms or expressly granted to you in writing by Rosenthal – The Malibu Estate no rights in the Materials (whether by implication, estoppel or otherwise) are granted to you. You acknowledge that you do not acquire any ownership rights in the Materials by using the Sites. You may only use the Materials as expressly set forth in these Terms. 

UNAUTHORIZED USE, COPYING, REPRODUCTION, STORING, MODIFICATION, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, DISTRIBUTING, DUPLICATING, REMOVAL OR ALTERATION OF ADVERTISING OR ANY OTHER MISUSE OF ANY OF THE MATERIALS IS STRICTLY PROHIBITED.

3.     Limited License.

Users under the age of twenty-one (21) are not permitted to use the Sites.

Subject to your strict compliance with these Terms and any Additional Terms, we hereby grant you a limited, personal, non-exclusive, non-transferable, non-assignable, revocable license to access our Sites and view the Materials (excluding source and object code, other than as made available to access and use via standard web browsers to enable display on your device) (the “License”). You may not reproduce, duplicate, copy, sell, resell or commercially exploit for any purposes, any portion of, use of, or access to the Sites.  When you access or view the Materials, you must: (a) keep intact all copyright and other proprietary notices; (b) make no modifications to the Materials; and (c) not allow or assist any third party (whether or not for your benefit) to copy or adapt any object code associated with the Sites or reverse engineer, modify or attempt to discover any source code associated with the Sites. In the event you fail to comply with these Terms, we may terminate the License without notice and you will no longer be permitted to use the Sites.

You agree to abide by any and all notices, information, or restrictions contained in any part of the Sites. Any and all rights to use the Sites that are not expressly granted to you under these Terms are reserved for Rosenthal - The Malibu Estate or its licensors. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Nothing contained in these Terms will affect, impair, or limit in any way Rosenthal - The Malibu Estate’s rights to exploit fully any or all of the Materials.  Unauthorized use of Materials may be a violation of federal and state laws and could result in civil and criminal liability.

4.     Accounts.

In order to use certain services or features of the Sites, you may be required to register an account with Rosenthal - The Malibu Estate.  In consideration of your use of the Sites, you agree to: (a) provide true, accurate, current and complete information;(b) maintain and promptly update such information to keep it true, accurate, current and complete; (c) protect and prevent unauthorized access to your account; and (d) not transfer or share your account with any third party; and immediately notify us of any suspected or actual unauthorized use of your account or breach of security. If you create an account with us, you agree to be personally responsible for any activities that occur under your account and the confidentiality of password, and you agree not to sell or otherwise transfer your membership or any membership rights. Rosenthal - The Malibu Estate reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Sites, including, without limitation, those governing your transmission or use of any software or data. 

5.     Prohibited Conduct.

You agree that you will not, including by use of any robot, scraper, or other data mining technology (a) process, frame, mask, extract data or other materials from, copy or distribute content from the Sites (except as may be a result of standard search engine or Internet browser usage); (b) copy, reproduce, republish, modify, create derivative works of, upload, download, perform, display, post, transmit, distribute or otherwise use content from the Sites in any way, without the prior written permission of a duly authorized Rosenthal - The Malibu Estate employee; (c) use the Sites or Materials for any political purpose; (d) engage in any activity in connection with the Sites or Materials that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Rosenthal - The Malibu Estate; (e) violate or interfere with the security of the Sites, attempt to gain unauthorized access to the Sites, data, Materials, information, computer systems or networks connected to any server associated with the Sites; (f) take or attempt any action that, in the sole discretion of Rosenthal - The Malibu Estate, imposes or may impose an unreasonable or disproportionately large load or burden on the Sites; (g) use the Sites or Materials in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (h) otherwise violate these Terms or any applicable Additional Terms.  

You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Sites and Materials.  

6.     Submissions. 

When you submit any unsolicited ideas, feedback, opinions, techniques, images, sounds, videos, or other content to us through or relating to the Service (“Submissions”), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights. 

 

You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions. You waive any and all rights and claims in connection with our consideration, use, or development of any product, content, or other materials similar or identical to your Submission now or in the future.

 

You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submission and remain responsible for them.

 

7.     Additional Winery Terms; Cancellation.

 

 

8.     Copyright Infringement.

A.   DMCA Notification. 

Rosenthal - The Malibu Estate responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information: 

  • A physical or electronic signature of the copyright owner or a person authorized to act on his or her behalf;
  • Identification of the copyrighted work claimed to have been infringed;
  • Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
  • Your contact information, including your address, telephone number, and an e-mail address;
  • A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
  • A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

 

Our designated agent is: 

 

DMCA Agent

Rosenthal - The Malibu Estate

5300 Melrose Avenue – 4th Fl. 

West Office Bldg., 

Hollywood, CA 90038

Phone: (310) 899-8900

Email: DMCAInfo@RosenthalEstateWines.com

 

 

You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp

 

We will respond to notifications of claimed copyright infringement in accordance with the DMCA. 

 

B.    Counter Notification.

If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:

  • A physical or electronic signature;
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  • A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  • Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Company may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

 

We will respond to counter notifications in accordance with the DMCA.

9.     Links to Third Party Content and Technology Integrations.

The Sites may contain links to websites and online services that are owned or operated by third parties. We do not control any of these third party websites, online services, or any of their content. The inclusion of any link does not imply endorsement by Rosenthal - The Malibu Estate or any association with its operators, or guarantee that the content contains accurate information or secure technology integrations. Accordingly, you understand and agree that we are not responsible for your use of these third party websites or online services, and that your use of such services is subject to the terms of use and privacy policies by such third parties.

10.  Jurisdictional Issues.

The Sites are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Rosenthal - The Malibu Estate to any registration requirement within such jurisdiction or country. Rosenthal - The Malibu Estate controls and operates the Sites from offices located in the U.S. and makes no representations or warranties that the information, products or services contained on the Sites are appropriate for use or access in other locations. Anyone using or accessing the Sites from other locations does so on their own initiative and is responsible for compliance with U.S. laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Sites or any portion of the Sites, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.

Software related to or made available by the Sites may be subject to export controls of the U.S. and, except as authorized by law, you agree and warrant not to export or re-export the software to any country, or to any person or entity subject to U.S. export controls or sanctions. 

11.  Linking Policy.

Rosenthal - The Malibu Estate grants you the revocable permission to link to the Sites; provided, however, that any link to the Sites: (a) must not present false information about, disparage, damage, dilute or tarnish the goodwill associated with Rosenthal - The Malibu Estate or its products or services, any Rosenthal - The Malibu Estate property or any other intellectual property; (b) must not create the false appearance that your web site or organization is sponsored, endorsed by, affiliated or associated with Rosenthal - The Malibu Estate; (c) must not frame or create a browser or border environment around any of the content on the Sites or otherwise mirror any part of the Sites; (d) must not use any Rosenthal - The Malibu Estate trademarks without the prior written permission from Rosenthal - The Malibu Estate; (e) must not contain content that could be construed as distasteful, offensive or controversial or otherwise objectionable (in Rosenthal - The Malibu Estate’s sole opinion); and (f) must be owned and controlled by you or the person or entity placing the link, or otherwise permit you to enable such link subject to these Terms. You agree that you will not link to the Sites from any source that is unlawful, abusive, indecent or obscene, that promotes violence or illegal acts, that contains expressions of racism, that is libelous, defamatory, scandalous, or inflammatory or is otherwise inappropriate (in Rosenthal - The Malibu Estate’s sole discretion). By linking to the Sites, you agree that you do and will continue to comply with the above linking requirements.

Notwithstanding anything to the contrary contained in these Terms, Rosenthal - The Malibu Estate reserves the right to prohibit linking to the Sites for any reason in our sole and absolute discretion.

12.  Mobile Features.

The Sites may offer features and services that are available to you via your mobile device, such as the ability to view the Sites or access features of the Sites, receive text messages from Rosenthal - The Malibu Estate (collectively, the “Mobile Features“). By using the Sites, you agree Rosenthal - The Malibu Estate may collect information related to your use of the Mobile Features as described in our Privacy Policy, and may change, alter, or modify the settings or configurations on your device in order to optimize your use of the Sites. 

If you sign up to receive transactional or promotional text messages, you acknowledge and agree that we may send such messages using an auto-dialer or prerecorded voice to the number you provide. You also acknowledge and agree that you are not required to receive our text messages as a condition of purchasing any property, goods, or services. At any time you may unsubscribe by replying “STOP” or receive more information by texting “HELP.” You understand that you may receive a text message confirming any opt-out by you and agree that the Mobile Features for which you are registered may send communications to your mobile device regarding Rosenthal - The Malibu Estate, the Sites or a product or service such as a reservation or booking you made. Standard messaging, data and other fees may be charged by your carrier. Fees and charges will appear on your mobile bill or be deducted from your pre-paid balance. Your carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your carrier or mobile device. Contact your carrier with questions regarding these issues. 

13.  Disclaimers.

WE MAKE NO REPRESENTATIONS AS TO THE ACCURACY, QUALITY, TIMELINESS, AVAILABILITY, OR COMPLETENESS OF THE INFORMATION, SITES, CONTENT OR MATERIALS AVAILABLE ON THE SITES, AND YOU SHOULD NOT RELY UPON THEM. WE PROVIDE THE SITES (INCLUDING, WITHOUT LIMITATION, ALL MATERIALS, PRODUCTS, MOBILE FEATURES, THIRD PARTY CONTENT, SERVICES, AND OTHER MATERIALS AND FUNCTIONALITY CONTAINED ON AND/OR OBTAINED THROUGH THE SITES) ON AN “AS IS,” “WITH ALL FAULTS,” AS AVAILABLE AS IS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. YOU USE THE SITES AT YOUR OWN RISK, AND THE ROSENTHAL - THE MALIBU ESTATE PARTIES ARE NOT LIABLE FOR ANY ERRORS OR OMISSIONS IN ITS CONTENT OR DELIVERY, OR FOR ANY FORM OF LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF KNOWN TO US) THAT MAY RESULT FROM THEIR USE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE ROSENTHAL - THE MALIBU ESTATE PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, FREEDOM FROM COMPUTER VIRUS, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. NO WARRANTY NOT SET FORTH IN THESE TERMS WILL BE VALID. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IF ANY OF THE ABOVE PROVISIONS ARE VOID UNDER GOVERNING LAW, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

WITHOUT LIMITING THE FOREGOING, THE ROSENTHAL - THE MALIBU ESTATE PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITES WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT DEFECTS OR ERRORS WILL BE CORRECTED, OR THAT THE SITES (OR THE SERVER(S) THAT MAKE THE SITES AVAILABLE) ARE FREE OF VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL INTERNET ACCESS SERVICES, DEVICE HARDWARE AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SITES, AND ALL CHARGES RELATED THERETO. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITES AND YOUR RELIANCE THEREON. NO OPINION, ADVICE, OR STATEMENT OF ANY ROSENTHAL - THE MALIBU ESTATE PARTY, WHETHER MADE ON THE SITES OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

YOU UNDERSTAND THAT BY USING THE SITES (OR ANY OF THEIR FEATURES OR FUNCTIONALITY), YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN THE JURISDICTION WHERE YOU ACCESS OR USE THE SITES.

THE ROSENTHAL - THE MALIBU ESTATE PARTIES SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, DEATH, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) BASED UPON OR RESULTING FROM ANY OPINION, ADVICE, INFORMATION, STATEMENT OR OTHER CONTENT MADE OR DISPLAYED ON THE SITES BY THIRD PARTIES (INCLUDING, WITHOUT LIMITATION, ANY USER OF THE SITES). ALTHOUGH WE ATTEMPT TO ENSURE THE INTEGRITY OF THE SITES, THE ROSENTHAL – THE MALIBU ESTATE  PARTIES MAKE NO GUARANTEES AS TO COMPLETENESS OR CORRECTNESS OF THE SITES. 

14.  Limitation of Liability.

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NONE OF THE ROSENTHAL - THE MALIBU ESTATE PARTIES ARE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, ECONOMIC, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY, DIRECTLY OR INDIRECTLY, TO: (A) THE SITES (INCLUDING, WITHOUT LIMITATION, ALL MATERIALS, INFORMATION, LINKS, MESSAGES, PRODUCTS, WIDGETS, MOBILE FEATURES, THIRD PARTY INTERACTIONS, SERVICES, AND OTHER MATERIALS AND FUNCTIONALITY CONTAINED ON AND/OR OBTAINED THROUGH THE SITES); (B) YOUR USE OF, OR INABILITY TO USE, OR THE PERFORMANCE OF THE SITES; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE ROSENTHAL - THE MALIBU ESTATE PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR USE OF THE SITES; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN TECHNICAL OPERATION OF THE SITES; OR (F) ANY DAMAGE TO ANY USER’S DEVICE, HARDWARE, DEVICE SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE ROSENTHAL - THE MALIBU ESTATE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR DESTRUCTION OF THE SITES). WITHOUT LIMITING THE FOREGOING, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE ROSENTHAL - THE MALIBU ESTATE PARTIES WILL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER OF THE SITES.  IN NO EVENT WILL THE ROSENTHAL - THE MALIBU ESTATE PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

YOUR SOLE REMEDY FOR DISSATISFACTION WITH ANY PORTION OF THE SITES IS TO STOP USING THE SITES, AND THE SOLE AND EXCLUSIVE MAXIMUM AGGREGATE LIABILITY TO THE ROSENTHAL - THE MALIBU ESTATE PARTIES FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE THE GREATER OF ONE HUNDRED  DOLLARS ($100) OR THE TOTAL AMOUNT PAID BY YOU, IF ANY, TO ACCESS THE SITES.

ROSENTHAL - THE MALIBU ESTATE SHALL BE EXCUSED FROM PERFORMANCE UNDER THESE TERMS TO THE EXTENT ROSENTHAL - THE MALIBU ESTATE IS PREVENTED FROM OR DELAYED FROM PERFORMING, IN WHOLE OR IN PART, AS A RESULT OF AN EVENT OR SERIES OF EVENTS CAUSED BY OR RESULTING FROM (1) WEATHER CONDITIONS OR OTHER ELEMENTS OF NATURE OR ACTS OF GOD, (2) ACTS OF WAR, TERRORISM, INSURRECTION, RIOTS, CIVIL DISORDERS, OR REBELLION, (3) QUARANTINES OR EMBARGOES, (4) LABOR STRIKES, OR (5) OTHER CAUSES BEYOND THE REASONABLE CONTROL OF ROSENTHAL - THE MALIBU ESTATE.

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF ROSENTHAL - THE MALIBU ESTATE’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF THE SITES OR ANY OF THE ROSENTHAL - THE MALIBU ESTATE PARTIES’ WEB SITES, PROPERTY, PRODUCTS, SERVICES, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE ROSENTHAL - THE MALIBU ESTATE PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF THE SITES OR ANY OTHER OF THE ROSENTHAL - THE MALIBU ESTATE PARTIES’ WEB SITES, PROPERTY, PRODUCTS, SERVICES, OR OTHER MATERIALS OWNED OR CONTROLLED BY THE ROSENTHAL - THE MALIBU ESTATE PARTIES.

BY ACCESSING THE SITES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

15.  Indemnification.

You will defend, indemnify and hold  the Rosenthal - The Malibu Estate Parties harmless from and against any and all claims, disputes, demands, damages, losses, investigations, liabilities, judgments, settlements, costs (including reasonable attorneys’ fees), or other expenses that directly or indirectly arise from or are otherwise directly or indirectly connected to (a) your breach or violation or anticipatory breach or violation of these Terms; (b) your misuse of any of the Sites or unauthorized activities in connection with any of the Sites (including without limitation, with respect to third party content); (c) your Content; (d) your violation of any law, rule,  regulation, code, statute, ordinance or order of any governmental and quasi-governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; (e) information or material transmitted through your computer, even if not submitted by you, that infringes, violates or misappropriates any copyright, trademark, trade secret, trade dress, patent, publicity, privacy or other right of any person or defames any person; (f) any misrepresentation made by you; or (g) the Rosenthal - The Malibu Estate Parties’ use of your information as permitted under these Terms, the Privacy Policy, or any applicable Additional Terms between you and any of the Rosenthal - The Malibu Estate Parties. You will cooperate as fully required by the Rosenthal - The Malibu Estate Parties in the defense of any claim. Rosenthal - The Malibu Estate reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of a duly authorized employee of Rosenthal - The Malibu Estate. This Section will survive the termination of these Terms.

16.  Injunctive Relief.

Your breach of these Terms may result in immediate and irreparable harm to us, for which there may be no adequate remedy at law, and, therefore, you agree that we shall be entitled to equitable relief to compel you to cease and desist all unauthorized use, evaluation and/or disclosure of information obtained through the Sites, which is in addition to any other remedies available at law or in equity.

17.  Governing Law, Disputes and Arbitration.

Governing Law. THE VALIDITY AND INTERPRETATION OF THESE TERMS, THE RIGHTS AND OBLIGATIONS HEREUNDER, AND ALL CAUSES OF ACTION (WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATED TO THESE TERMS, THE TERMINATION OF THESE TERMS, OR THE USE OF THE SITES, ARE BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS (AS DISTINGUISHED FROM THE CHOICE OF LAW RULES) OF THE STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA APPLICABLE TO CONTRACTS MADE AND PERFORMED ENTIRELY IN CALIFORNIA.

 

Waivers. Both you and Rosenthal - The Malibu Estate hereby expressly waive constitutional and statutory rights to trial by jury. Both you and Rosenthal - The Malibu Estate waive the right to bring or resolve any dispute as a class, consolidated, representative, collective, or private attorney general action. Both you and Rosenthal - The Malibu Estate waive the right to participate in a class, consolidated, representative, collective, or private attorney general action brought by anyone else.

Arbitration of DisputesPLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. Unless you opt-out specifically as set forth in this Section, you agree that all disputes between you and Rosenthal - The Malibu Estate (whether or not such dispute involves a third party) with regard to these Terms or your use of the Sites will be resolved by binding, individual arbitration, except for disputes relating to the infringement of your or Rosenthal - The Malibu Estate’s intellectual property (such as trademarks, trade dress, copyright and patents) or where Rosenthal - The Malibu Estate is seeking a preliminary injunction (“Excluded Disputes”). You agree that arbitration will be conducted by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect. Notwithstanding any provision of the JAMS Comprehensive Arbitration Rules and Procedures then in effect, the arbitrators shall not have the authority or jurisdiction to hear the arbitration as a class, consolidated, representative, collective, or private attorney general action or to consolidate, join, or otherwise combine the claims of different persons into one proceeding.

This dispute resolution provision will be governed by the Federal Arbitration Act and, where consistent, California law. The arbitration will be conducted in Los Angeles, California, in the English language by three arbitrators appointed in accordance with the JAMS Comprehensive Arbitration Rules and Procedures then in effect. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrators will not have authority to award punitive or exemplary damages.

Opt-Out of Arbitration and Rejection of Changes to Arbitration Provisions. If you do not wish to have any dispute between you and Rosenthal - The Malibu Estate arbitrated, you must notify Rosenthal - The Malibu Estate in writing within thirty (30) days of the date that you first became subject to this arbitration clause, which is the date you first visited the site after these Terms of Use were posted. If you have not opted out of these arbitration provisions and are, therefore, subject to the requirement to have a dispute between you and Rosenthal - The Malibu Estate arbitrated and we subsequently change or update the arbitration clause under this “Governing Law; Disputes; Arbitration” section, you may reject the change to the arbitration provision by notifying Rosenthal - The Malibu Estate in writing within thirty (30) days after the Effective Date of the updated Terms. By rejecting the changes to the arbitration provision, you will be subject to the arbitration clause of the version of the Terms of Use that you did not reject. You may provide notice of your opt-out of arbitration or your rejection of changes to an updated arbitration provision by postal mail at the following address: Rosenthal - The Malibu Estate Arbitration Opt-Out, 5300 Melrose Avenue – 4th Fl. West Office Bldg., Hollywood, CA 90038, Attn: General Counsel, Rosenthal - The Malibu Estate. Your opt-out notification to Rosenthal - The Malibu Estate must include (1) your name, (2) your postal address, (3) your user ID (if applicable), (4) the specific Site(s) regarding which you wish to opt-out of arbitration, and (5) a clear statement that you do not wish to resolve disputes with Rosenthal - The Malibu Estate through arbitration with respect to the specific Site(s) you identified or that you reject an updated arbitration provision, as applicable.  You may identify multiple Site(s) in a single opt-out notice, provided that you send the opt-out notice within thirty (30) days of the date that you first became subject to this arbitration clause with respect to all Sites identified.  If You have previously notified Rosenthal - The Malibu Estate that you wish to opt-out of arbitration, you are not required to do so again. Any opt-out request postmarked after the opt-out deadline or that fails to satisfy the other requirements above will not be valid. Please note that opting out of arbitration will not affect any other agreements or waivers made in this Section 19.

 

Venue. If you have not validly opted out of arbitration, you agree that any action at law or in equity relating to the arbitration provision of this Agreement or the Excluded Disputes will be filed only in the state or federal courts located in Los Angeles, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If you have validly opted out of arbitration, you agree that any action at law or in equity will be filed only in the state or federal courts located in Los Angeles, California and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.

 

18.  No Waiver; Severability; Interpretation

A waiver of any breach of any provision of the Terms shall not be deemed to be a waiver of any repetition of such breach or in any manner affect any other terms or conditions of the Terms. We do not waive any rights by the failure to enforce these Terms in every instance in which they might apply.  In the event that any provision of the Terms is held to be unlawful, void, or for any reason unenforceable, it will not affect the validity or enforceability of the remaining provisions and will be replaced by an enforceable provision that is the closest to the intention underlying the unenforceable provision. Any heading, caption or paragraph title contained in these Terms is inserted only as a matter of convenience and in no way defines or explains any paragraph or provision hereof. You agree that these Terms will not be construed against Rosenthal - The Malibu Estate by virtue of having drafted these Terms.

19.  Assignability.

We may assign our rights and delegate our duties under the Terms either in whole or in part at any time without notice. You may not assign, sublicense or otherwise transfer your rights or obligations, in whole or in part, under the Terms to anyone else without our prior written consent.

20.  Relationship.

This Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between you and us.

21.  Termination.

Rosenthal - The Malibu Estate reserves the right, without notice or liability and at its sole discretion, to suspend or terminate these Terms and/or your ability to access or use the Sites (or any portion of the Sites), and to block or prevent future access to and use of the Sites for any reason, including, without limitation, your breach of these Terms or other conduct by you that Rosenthal - The Malibu Estate considers inappropriate. Rosenthal - The Malibu Estate reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Sites with or without notice. You agree that no Rosenthal - The Malibu Estate Party shall be liable to you or to any third party for any modification, suspension or discontinuation of the Sites. You acknowledge and agree that termination, suspension, or cancellation of these Terms or your access to the Sites will not affect any right or relief to which Rosenthal - The Malibu Estate may be entitled, at law or in equity, nor shall they affect any obligation you have to Rosenthal - The Malibu Estate, including but not limited to the payment of fees.

Upon termination of these Terms, all rights granted to you will automatically terminate and immediately revert to Rosenthal - The Malibu Estate and its licensors. Upon termination of your access to the Sites, or upon demand by Rosenthal - The Malibu Estate, you must destroy all content of the Sites which you possess and all related documentation including immediately discontinuing the use of any links to the Sites. Any provisions of these Terms, which, by their terms, ought to survive, shall survive any termination of these Terms.

22.  Entire Agreement.

You acknowledge and agree that these Terms and any applicable Additional Terms constitute the complete and exclusive agreement between you and Rosenthal - The Malibu Estate concerning your access to and use of the Sites, and supersede and govern all prior proposals, agreements, or other communications, whether oral or in writing, with respect to the Sites. Neither party has relied on any statement or representation not set forth in these Terms and any applicable Additional Terms. You represent, warrant, and covenant that your access to and use of the Sites will comply with these Terms.

23.  Updates and Changes to these Terms.

We may add to, change, update or modify these Terms at any time, without prior notice, by posting such updates on the Sites. You agree that we may notify you of the updated Terms by posting them on the Sites and your continued use of the Sites constitutes your agreement to the updated Terms. Any such change, update or modification will be effective immediately upon posting on the Sites or such later date as may be specified in the updated Terms, and will apply to your use of the Sites from that point forward.

24.  Contact Us.

If you have any comments or questions regarding these Terms, or if you wish to report any violations of these Terms, you may contact us via sunsetmarquis.com/about-west-hollywood-hotel/contact/.

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