SITE 85 PRODUCTIONS, INC. TERMS OF USE AGREEMENT

IMPORTANT!

READ THIS AGREEMENT BEFORE ACCESSING WEBSITE

THIS TERMS OF USE AGREEMENT WAS LAST UPDATED ON OCTOBER 8, 2008

This Terms of Use Agreement sets forth the standards of use for all Site 85 Productions, Inc., hereafter Site 85, Websites, including but not limited to www.neil-russell.com. By using any of Site 85’s Websites you, the User, agree to these terms and conditions. If you do not agree to the terms and conditions of this Agreement, you should immediately cease all usage of the Websites. Site 85 reserves the right, at any time, to modify, alter, or update the terms and conditions of this agreement without prior notice. Modifications shall become effective immediately upon being posted at www.neil-russell.com. User’s continued use of the Websites after amendments are posted constitutes an acknowledgement and acceptance of the Agreement and its modifications. Except as provided in this paragraph, this Agreement may not be amended.

1. Access to the Websites.

Users must (1) provide all equipment necessary for User’s own Internet connection, including computer and modem, (2) provide for User’s access to the Internet, and (3) pay any fees related to such access.

2. Disclaimer of Warranties.

YOU AGREE THAT YOUR USE OF THE SITE 85 WEBSITES www.neil-russell.com SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SITE 85, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. SITE 85 MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE 85 WEBSITE. SITE 85 DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE 85 WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SITE 85 WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

3. Limitation of Liability.

SITE 85 SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, AND IN PARTICULAR SITE 85 SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOSS OF REVENUE, OR LOSS OF USE, ARISING OUT OF OR RELATED TO THESE WEBSITES OR THE INFORMATION CONTAINED IN THEM, WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE, EVEN IF SITE 85 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY BE INAPPLICABLE.

4. Indemnification.

User agrees to defend, indemnify and hold Site 85, its parents, subsidiaries, affiliates, associates, officers and employees, harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of User’s use of the Websites, any violation of this Agreement, or infringement by User, or other User(s) of the Websites using User’s computer, of any intellectual property or any other right of any person or entity.

5. User Conduct; Forum and Message Restrictions.

A. As a Site 85 user you may submit content. Content from users is hereby referred to as "User Submissions." You understand that whether or not such User Submissions are published, Site 85 does not guarantee any confidentiality with respect to any User Submissions.

B. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize Site 85 to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Use.

C. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to Site 85, you hereby grant Site 85 a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Site 85 Website and Site 85 's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Site 85 Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Site 85 Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Use. The above licenses granted by you are perpetual and irrevocable.

D. In connection with User Submissions, you further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Site 85 all of the license rights granted herein.

E. You further agree that you will not, in connection with User Submissions, submit material that is contrary to applicable local, national, and international laws and regulations.

F. Site 85 does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Site 85 expressly disclaims any and all liability in connection with User Submissions. Site 85 does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Site 85 will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. Site 85 reserves the right to remove Content and User Submissions without prior notice.

In addition, you agree not to use the Site 85 Website to:

• harvest or collect email addresses or other contact information of other users from the Website by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
• use the Website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Website;
• use automated scripts to collect information from or otherwise interact with the Website;
• upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, pornographic, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;
• register for more than one User account, register for a User account on behalf of an individual other than yourself, or register for a User account on behalf of any group or entity;
• impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
• upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
• upload, post, transmit, share, store or otherwise make publicly available on the Site 85 Website any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
• solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
• upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• intimidate or harass another;
• upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
• use or attempt to use another's account, service or system without authorization from Site 85, or create a false identity on this Website.
• upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Site 85, is objectionable or which restricts or inhibits any other person from using or enjoying the Website, or which may expose Site 85 or its users to any harm or liability of any type.

6. Modifications and Interruption to Websites.

Site 85 reserves the right to modify or discontinue its Websites with or without notice to the User. Site 85 shall not be liable to User or any third party should Site 85 exercise its right to modify or discontinue either or both Websites. User acknowledges and accepts that Site 85 does not guarantee continuous, uninterrupted or secure access to its Websites and operation of the Websites may be interfered with or adversely affected by numerous factors or circumstances outside of Site 85’s control.

7. Third-Party Sites.

Site 85’s Websites may include links to other sites on the Internet that are owned and operated by online merchants and other third parties. User acknowledges that Site 85 is not responsible for the availability of, or the content located on or through, any third-party site. User should contact the site administrator or webmaster for those third-party sites if User has any concerns regarding such links or the content located on such sites. User’s use of those third-party sites is subject to the terms of use and privacy policies of each site, and Site 85 is not responsible therein. Site 85 encourage all Users to review said privacy policies of all third-parties’ sites.

8. Disclaimer Regarding Accuracy of Third Party Information.

While Site 85 makes every reasonable effort to ensure that the information on its Websites is accurate, Site 85 can make no representations or warranties as to the accuracy or reliability of any information provided by third parties. Site 85 also makes no warranties or representations whatsoever with regard to any product provided or offered by any third party, and User acknowledges that any reliance on representations and warranties provided by any third party shall be at User’s own risk.

9. Governing Jurisdiction.

Site 85’s Websites are operated and provided in the State of California. As such, Site 85 is subject to the laws of the State of California, and such laws will govern this Terms of Use Agreement, without giving effect to any choice of law rules. Site 85 makes no representation that its Websites or other services are appropriate, legal or available for use in other locations. Accordingly, if User chooses to access Site 85’s Websites, User agrees to do so subject to the internal laws of the State of California.

10. Compliance with Laws.

User assumes all knowledge of applicable law and is responsible for compliance with any such laws. User may not use the Websites in any way that violates applicable state, federal, or international laws, regulations or other government requirements. User further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national, or international law or regulation. Any violation of these Terms may be referred to law enforcement authorities.

11. Copyright and Trademark.

Except where noted, all content included or available on the Websites, including site design, text, graphics, interfaces, and the selection and arrangements thereof is Copyright 2008 Site 85 Productions, Inc., and all rights are reserved. Intellectual property available on the Websites that is owned by any third party is protected under that third party’s intellectual property rights.

Any use of materials on the Websites, including reproduction for purposes other than those noted above, modification, distribution, or replication, any form of data extraction or data mining, or other commercial exploitation of any kind, without prior written permission of an authorized officer of Site 85 is strictly prohibited. Users agree that they will not use any robot, spider, or other automatic device, or manual process to monitor or copy Site 85’s web pages or the content contained therein without prior written permission of an authorized officer of Site 85.

Site 85 Productions, Inc., Hawks, Hawks Crimson, Cross Hawks and Christmas Always Breaks My Heart, among others, are proprietary and protected marks of Site 85 Productions, Inc. Site 85’s marks may not be used in connection with any product or service that is not provided by Site 85 or in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Site 85 or any party associated with Site 85.

All other trademarks displayed on Site 85’s Websites are the trademarks of their respective owners, and constitute neither an endorsement nor a recommendation of those third parties. In addition, such use of trademarks or links to the Websites of third parties is not intended to imply, directly or indirectly, that those third parties endorse or have any affiliation with Site 85.

12. Notification of Claimed Copyright Infringement.

A. If you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
• A statement that you have a good faith belief that use of the material in the manner complained of 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 owner of an exclusive right that is allegedly infringed.

Site 85’s designated Copyright Agent to receive notifications of claimed infringement is: Neil Russell, Site 85 Productions, Inc., P.O. Box 10509, Beverly Hills, California 90210, email: crosshawks@aol.com, fax: 949-857-0338. You acknowledge that if you fail to comply with all of the requirements of this Section 5(D), your DMCA notice may not be valid.

B. Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:

• Your physical or electronic signature;
• Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Los Angeles, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Website Officer, Site 85 may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Site 85's sole discretion.

13. Botnets.

Site 85 retains the right, at its sole discretion, to terminate any accounts involved with botnets and related activities. If any hostnames are used as command and control points for botnets, Site 85 reserves the right to direct the involved hostnames to a honeypot, loopback address, logging facility, or any other destination at its discretion.

14. Access and Interference.

You agree that you will not use any robot, spider or other automatic device, process or means to access the Website. Nor shall you use any manual process to monitor or copy our web pages or the content contained thereon or for any other unauthorized purpose without our prior expressed written permission. You agree that you will not use any device, software or routine that interferes with the proper working of the Website nor shall you attempt to interfere with the proper working of the Website. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. You agree that you will not access, reload or "refresh" web pages, or make any other request to our servers, more than once during any three second interval. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for your own personal, non-commercial use) from the Website without the prior expressed written permission of Site 85.

15. Linking.

All linking to the Websites shall only be done only to the Websites’ home pages, and the link must be in plain text. The link must not damage, dilute, modify or tarnish Site 85 and/or its intellectual property, nor shall the link create the false appearance that any other entity is sponsored, endorsed by, or affiliated with Site 85. No party shall link to the Websites from a site that is unlawful, abusive, indecent, that promotes violence or illegal acts, that contains expressions of racism, that is libelous or inflammatory, or is otherwise deemed inappropriate as determined by Site 85 at its sole discretion. Site 85 reserves the right to terminate any link for any reason without limitation.

16. Other Terms

If any provision of this Terms of Use Agreement shall be unlawful, void or unenforceable for any reason, the other provisions (and any partially-enforceable provision) shall not be affected thereby and shall remain valid and enforceable to the maximum possible extent. User agrees that this Terms of Use Agreement and any other agreements referenced herein may be assigned by Site 85, at its sole discretion, to a third party in the event of a merger or acquisition. This Terms of Use Agreement shall apply in addition to, and shall not be superseded by, any other written agreement between Site 85 and User. User agrees that by accepting this Terms of Use Agreement, User is consenting to the use and disclosure of User’s personally identifiable information and other practices described in Site 85’s Privacy Policy Statement.