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DISCLAIMER & TERMS OF USE AGREEMENT THIS
DISCLAIMER AND TERMS OF USE AGREEMENT (“AGREEMENT”) CONSTITUTES A
LEGAL AGREEMENT BETWEEN YOU AND [NAME] (“[DEFINED]”) AND DESCRIBES
THE TERMS AND CONDITIONS APPLICABLE TO YOUR USE OF THE SITE AND SERVICES
(COLLECTIVELY THE “SITE”) AVAILABLE UNDER THE DOMAIN AND SUB-DOMAINS
OF [SITES]. YOU MUST READ, AGREE WITH, AND ACCEPT ALL OF THE TERMS AND
CONDITIONS CONTAINED IN THIS AGREEMENT, WHICH INCLUDES THOSE TERMS AND
CONDITIONS EXPRESSLY SET FORTH BELOW AND THOSE INCORPORATED BY
REFERENCE, BEFORE YOU MAY BECOME AN AUTHORIZED USER OF THE SITE
(“USER”). THE ABOVE NAMED PARTIES ARE HEREIN REFERRED TO SINGULARLY
AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”. BY
ACCESSING, VIEWING, OR USING ANY PART OF THE SITE, YOU AGREE TO BE BOUND
BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF YOU DO NOT
AGREE, DO NOT ACCESS, VIEW, OR USE ANY PART OF THE SITE. THIS AGREEMENT
SHALL BE GOVERNED BY THE ELECTRONIC SIGNATURES ACT, AND THE USER’S
AGREEMENT TO THE TERMS OF THIS AGREEMENT SHALL BE MANIFESTED BY ANY
ACCESS TO, VIEWING, OR USE OF THIS SITE. 1 Ownership and Intellectual Property
1.1
“User Materials” is defined as any information, data, content, or
materials you provide (directly or indirectly) to [DEFINED] or other
Users. User Materials include information you submit, transfer, post, or
deliver to the Site, including without limitation, data, information,
email addresses,IDs, User Accounts, and passwords, as well as any other
information resulting from or produced by your use of the Site obtained
by [DEFINED]. Users are solely responsible for User Materials, and you
hereby agree that [DEFINED] acts as a passive means for the online
storage, distribution, and publication thereof. 1.2
Other than User Materials, all information included or available on the
Site, such as data, information, advertisements, articles, publications,
text, graphics, logos, icons, images, audio, videos, software, and other
analog or digital information in any media, now known or later developed
(collectively the “Content”), is the property of [DEFINED] or its
licensors and is protected by copyright, trademark, patent, or other
intellectual and proprietary rights. 1.3
The compilation, meaning the collection, arrangement, and assembly, of
all Content on the Site is the exclusive property of [DEFINED] or its
licensors, and is protected by copyright, trademark, patent, or other
intellectual and proprietary rights. All software used on the Site is
the property of [DEFINED] or its licensors and is protected by
copyright, patent or other intellectual and proprietary rights. 1.4
All elements of the Site, including without limitation, the general
design and Content, are protected by trade dress, moral rights,
copyright, trademark, patent, or other intellectual and proprietary
rights. Except as explicitly permitted under this or another agreement
with [DEFINED] or one of its respective licensors, no portion or element
of this Site or its Content may be copied or retransmitted via any
means, and this Site, its Content, and all related rights shall remain
the exclusive property of [DEFINED] or its licensors unless otherwise
expressly agreed. 1.5
You agree that you will not use any robot, spider, other automatic
device, or manual process to monitor or copy any portion of the Site or
Content contained herein without the prior express written permission of
[DEFINED]. You agree that you will not use any device, software, or
routine to bypass any operational element, or to interfere or attempt to
interfere with the proper working of the Site, server, or activities
conducted therein. You agree that you will not take any action that
imposes an unreasonable or disproportionately large load on Site or
network infrastructure. 1.6
Much of the Content on the Site is updated on a real time basis and is
proprietary or licensed to [DEFINED] by its Users or licensors. You
agree that you will not copy, reproduce, alter, modify, create
derivative works, or publicly display any Content, except for User
Materials, from the Site without the prior express written permission of
[DEFINED] or respective licensor. 1.7
“[MARKS]” and any accompanying logos, alone or in conjunction with
any text, are trademarks and service marks of [DEFINED] and are in use,
registered, or pending in certain countries. [DEFINED] retains all
right, title, and interest in and to its trademarks, service marks, and
trade names worldwide (collectively the “Marks”). You will only use
the Marks with the prior express written permission of [DEFINED], and
then only in the manner authorized. Under no circumstances may you
alter, modify, or change the Marks. 1.8
Subject to the terms and conditions of this Agreement, [DEFINED] grants
a limited license to you to make personal use of the Site only for its
intended purposes. This license expressly excludes any resale or making
a derivative of the Site, the collection and use of other Users’
personal information, email addresses, User Materials, or any data
extraction or data mining whatsoever, except with the prior express
written permission of the respective owner. You may not repost or
otherwise reuse advertisements that you create using the Site other than
through the Site. 1.9
You may not use, export, or re-export the Content or Site at this Site
or any copy or adaptation therof in violation of any applicable law or
regulation, including without limitation, United States export laws and
regulations. 1.10
You agree to take all action and cooperate as is reasonably necessary,
at [DEFINED]’s request, to protect [DEFINED]’s right, title, and
interest in any property, and agree to execute any documents necessary
to perfect [DEFINED]’s ownership of such right, title, and interest. 1.11
Nothing in this Agreement grants either Party ownership or other rights
except in accordance with the terms of this Agreement. 2 Use of the Site
2.1
The Site is available only to individuals who can form legally binding
contracts under applicable law. Without limiting the foregoing, the Site
is not available to minors or to temporarily or indefinitely suspended
Users. If you are a minor, you can use this service only in conjunction
with your parents or guardians. If you do not qualify, do not access or
use the Site. 2.2
To use the Site, you must accept the terms and conditions contained in
this Agreement on behalf of yourself or the corporation, partnership, or
other legal entity that will be using the Site. By accepting this
Agreement, you are making the following statement: "I
hereby swear, certify, and affirm, under the penalties of perjury
pursuant to 28 U.S.C. Section
1746 that I: (A)
am eighteen (18) years of age or older; and, if applicable; (B)
am authorized to sign for and bind the corporation, partnership, or
other legal entity that will be using the Site; (C)
have not provided any false, misleading, or otherwise erroneous
information; (D)
am not under the influence of any drugs, alcohol, or mind altering
substances or mechanism, natural or otherwise, nor is your judgment impaired by any mental illness, deficiency, or
infirmity; (E)
know and understand the materials contained in the Site include explicit
visual, audio, or textual depictions of nudity and sexual activities,
including without limitation, heterosexual, bisexual, homosexual, or
transsexual activities of an explicit sexual nature; (F)
am familiar with materials of this kind; (G)
am not offended by such materials; (H) do not find
scenes or images depicting or involving nudity, actual or simulated
sexual conduct, or sexually explicit material, actions, or circumstances
to be offensive or objective in any way and are not offended by such
scenes or images or by viewing the engagement, participation, and
performances by others contained in such material; (I) am not
prohibited by any local, state, or federal authority or community from
possessing, viewing, or performing in such material as described in
2.2(C); and (J) will not
permit any persons less than eighteen (18) years of age, or twenty-one
(21) years of age in places where eighteen (18) years of age is not the
age of majority, to access any materials contained in the Site; (K)
am voluntarily, intentionally, and knowingly seeking access to such
explicit sexual materials for my own personal enjoyment, information, or
education. (L)
am not currently, nor have I ever been, affiliated with a government or
law enforcement agency gathering information to be used in a criminal or
civil action taken against the owners or operators of the Site; (M)
am familiar with the standards in my community regarding the acceptance
of scenes or images depicting or involving nudity, actual or simulated
sexual conduct, or sexually explicit material, actions, or
circumstances, and the materials I expect to encounter contained in the
Site are within those standards; (N)
in my judgment, the average adult in my community accepts the
consumption of such materials; and (O) acknowledge,
understand, and agree that providing a false declaration under the
penalties of perjury is a criminal offense and that this document
constitutes an un-sworn declaration under federal law." 2.3
IDs or User Accounts may not be transferred or sold to another party. If
you are registering as a business entity, you represent that you have
the authority to bind the entity to this terms and conditions contained
in this Agreement. 2.4
You agree to comply with all applicable local, state, federal, and
international laws and regulations related to use of the Site. 2.5
You may not use the Site to engage in fraud or other illegal activity,
or to infringe the intellectual property rights of [DEFINED] or third
parties. If you believe that a User of this Site has infringed on
materials protected by copyright, trademark, or patent law, contact
[EMAIL] 2.6
You agree to comply with the terms and conditions of all agreements you
have with any third parties, as such terms and conditions relate to use
of the Site. 3 User Materials 3.1
User Materials, or any items included therein: (A)
shall not be false, inaccurate, or misleading; (B)
shall not be fraudulent or involve the sale of counterfeit or stolen
items; (C)
shall not infringe any third party’s intellectual property, copyright,
patent, trademark, trade secret, publicity rights, privacy rights, or
other proprietary rights; (D)
shall not violate any local, state, federal, or international law or
regulation, including without limitation, those governing export
control, consumer protection, unfair competition, anti-discrimination,
false advertising, deceptive practices, or securities transactions; (E)
shall not be defamatory, libelous, unlawfully threatening, or unlawfully
harassing; (F)
shall not be obscene, contain child pornography, harmful to minors, or
be distributed to people not legally permitted to receive such content; (G)
shall not create liability for [DEFINED] or cause it to lose, in whole
or in part, the Site, its Internet Service Provider, hosting server, or
other suppliers; (H)
shall not violate the terms and conditions of any agreements you have
with any third parties as such relate to your use of the Site; and (I)
shall not contain any virus, Trojan Horse, worm, time bomb, cancelbot,
robot, spider, monitor, or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously
intercept, record, or expropriate any system, data, or personal
information. 3.2
You shall only use the Site solely for purposes related to the Site. 3.3
By entering into this Agreement you grant [DEFINED] a non-exclusive,
worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through
multiple tiers) right, including a waiver of any applicable moral
rights, to exercise the copyright and publicity rights you have in your
User Materials, in any media now known or later developed, solely for
purposes related to providing the Site (“License”). You represent
and warrant that you have the authority to grant the License and that
the holder of any intellectual property or other proprietary rights in
your User Materials has licensed, assigned, or waived such holder’s
rights to the extent necessary to grant the License. 3.4
Any communications or materials you transmit to [DEFINED] by electronic
mail or otherwise post in a public area of the Site may be used by
[DEFINED], its affiliates, or licensors for any purpose, including
without limitation, reproduction, disclosure, display, performance,
transmission, publication, broadcast, and posting. Furthermore,
[DEFINED] and its affiliates and licensors are free to use any ideas,
concepts, know-how, hypothesis, premise, or technique contained in any
such communication for any purpose whatsoever, including without
limitation, developing, manufacturing, and marketing products or
services. 3.5
[DEFINED] reserves the right to access, monitor, remove, or disable
access to any User Materials at any time in its sole discretion. 4 Warranty Disclaimer
4.1
EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THIS AGREEMENT, YOU
ACKNOWLEDGE AND AGREE THAT USE OF THE SITE, CONTENT, OR ANY MATERIALS
CONTAINED THEREIN ARE AT YOUR OWN RISK AND THAT [DEFINED], ITS
AFFILIATES, LICENSORS, AND SUPPLIERS PROVIDE THE SITE AND ITS CONTENT
“AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED, OR
STATUTORY WARRANTIES, REPRESENTATIONS, ENDORSEMENTS, OR CONDITIONS.
[DEFINED], ITS AFFILIATES, LICENSORS, AND SUPPLIERS SPECIFICALLY
DISCLAIM, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, INCLUDING WITHOUT LIMITATION: (A)
ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT; (B)
THAT THE SITE, CONTENT, OR ANY MATERIALS CONTAINED THEREIN WILL MEET ANY
REQUIREMENTS OR WILL BE AVAILABLE, ACCURATE, RELIABLE, CORRECT, USEFUL,
TIMELY, UNINTERRUPTED, SECURE, OR FREE FROM DEFECTS OR ERROR, INCLUDING
WITHOUT LIMITATION, TRANSMISSION OR RECEPTION OUTAGES, BLOCKAGES,
WEAKNESSES, STATIC, VIRII, WORMS, TROJAN HORSES, MALICIOUS CODE, OR
OTHER HARMFUL COMPONENTS OR EVENTS; (C)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE;
AND (D)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR
NOT ARISING FROM THE NEGLIGENCE OF [DEFINED], ITS AFFILIATES, LICENSORS,
OR SUPPLIERS. 4.2
While reasonable efforts are made to ensure the accuracy, correctness,
and reliability of the Site and its Content, [DEFINED] makes no
representations or warranties as to the accuracy, correctness, and
reliability of the Site or Content. The Site or Content may be out of
date, and [DEFINED] makes no commitment to update the Site or Content. 4.3
[DEFINED] may provide links to third party sites. Links to third party
sites are provided solely as a convenience. Use of such links will cause
the User to leave the Site. [DEFINED] does not review or control any
third party sites, and does not endorse, make any representations
regarding, and is not responsible for any content, services,
information, software, products, or materials found therein, nor any
loss or results suffered in relation to use of the third party site.
Access of any third party site via the [DEFINED] domain or sub-domain is
entirely at the User’s own risk. You hereby waive any and all claims
against [DEFINED] regarding the inclusion of links to third party sites
and your use of those sites. 4.4
Some United States states and foreign countries do not permit the
exclusion or limitation of implied warranties. Therefore, some or all of
the above limitations may not apply to the extent they are prohibited or
superseded by state or national provisions. There may also be other
legal rights which vary from state to state. 5 Limitation of Liability 5.1
EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT OR ELSEWHERE ON THE
SITE, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER [DEFINED] NOR
ITS SUCCESSORS, ASSIGNS, AFFILIATES, LICENSORS, OR SUPPLIERS, NOR ANY OF
THEIR REPSECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR CONSULTANTS, OR ANY
OTHER THIRD PARTY MENTIONED AT THE SITE WILL BE LIABLE FOR DAMAGES OF
ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION: (A)
THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION; (B)
DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL,
INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF THE RELIANCE ON OR USE,
MISUSE, INABILITY TO USE, RESULTS OF USE, OR PERFORMANCE OF THE SITE AND
ANY THIRD PARTY SITES LINKED TO FROM THE SITE, OR THE MATERIALS,
INFORMATION, MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS
IN OPERATION, TRANSMISSION, OR FAILURE THEREOF, OR LINKS CONTAINED AT
ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY
OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; OR (C)
ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, OR COSTS, INCLUDING
LEGAL OR ATTORNEYS’ FEES, RESULTING DIRECTLY OR INDIRECTLY OUT OF, OR
OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT, OR
OTHER PROCEEDING BASED UPON A CONTENTION THAT USE OR ACCESS OF THE SITE,
CONTENT, OR ANY MATERIALS CONTAINED THEREIN, INCLUDING CONTENT AND
MATERIALS SUPPLIED BY YOUR OR A THIRD PARTY, INFRINGES THE COPYRIGHT,
PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PUBLICITY, PRIVACY, OR
OTHER INDUSTRIAL, CONTRACTUAL, OR INTELLECTUAL PROPERTY RIGHTS OF ANY
THIRD PARTY. THIS LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE,
AND GROSS NEGLIGENCE OF [DEFINED], ITS SUCESSORS, ASSIGNS, AFFILIATES,
LICENSORS, OR SUPPLIERS, TOGETHER WITH ALL OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AND CONSULTANTS WHICH, BUT FOR THIS PROVISION,
WOULD GIVE RISE TO A CAUSE OF ACTION AGAINST [DEFINED] IN CONTRACT,
TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE AND EXCLUSIVE REMEDY
REGARDING ANY OF THE FOREGOING IS TO DISCONTINUE USE OF THE SITE,
CONTENT, AND ANY MATERIALS CONTAINED THEREIN. 5.2
If your use of the Site, Content, materials, or information results in
the need for servicing, repair or correction of equipment or data, you
assume all costs thereof. 5.3
The aggregate liability of [DEFINED], its suppliers, or distributors to
you or any third parties in any circumstance is limited to fifty United
States dollars ($50). 5.4
Some United States states and foreign countries do not permit the
exclusion or limitation of incidental or consequential damages.
Therefore, some or all of the limitations above may not apply to you to
the extent they are prohibited or superseded by state or national
provisions. You may also have other legal rights which vary from state
to state. 5.5
In jurisdictions not allowing the exclusion or limitation of incidental
or consequential damages, the liability of [DEFINED], its successors,
assigns, affiliates, licensors, and suppliers, together with all of
their respective officers, directors, employees, and consultants shall
be limited to the fullest extent permitted by applicable law. 6 Indemnification
6.1
You hereby agree to defend, indemnify, and hold harmless [DEFINED], its
successors, assigns, affiliates, licensors, and suppliers, together with
all of their respective officers, directors, employees, and consultants
from and against any and all claims, civil and criminal liability,
judgments, penalties, taxes, damages, and all costs and expenses,
including without limitation, those arising out of or relating to your
use, misuse, or inability to use the Site or any materials, or any
violation of this Agreement or any local, state, or federal law,
regulation, or statute, or any rights of any third parties, including
without limitation: (A)
any third party claim, action, or allegation that the Site infringes or
violates any third party’s copyright, patent, trade secret, trademark,
right of publicity, or right of privacy, contains any defamatory
content, or violates any local, state, or federal law, regulation, or
statute, including without limitation, any claim of personal injury or
product liability; (B)
any fraud, manipulation, or other breach of this Agreement or other
policies and agreements by you; (C)
any third party claim, action, or allegation brought against [DEFINED]
arising out of or relating to a dispute with you over the terms and
conditions of an agreement or related to the purchase or sale of any
goods or Site; (D)
your violation of any law or the rights of a third party; (E)
your use, or [DEFINED]’s provision, of the Site or use of your ID or
User Account by any third party. [DEFINED] will have the right to
participate in its defense and hire counsel of its choice, at your
expense. You will not settle any action or claims on [DEFINED]’s
behalf without the prior written consent of [DEFINED]; and (F)
reasonable attorneys’ fees resulting from any breach of any warranty
or representation under this Agreement. 6.2
[DEFINED] reserves the right to exclusively defend and control any
indemnification matters and you hereby agree that you will fully
cooperate and assist in any such defense. 7 Deactivation, Suspension, and Termination
7.1
Without limiting other remedies, [DEFINED], in its sole discretion, may
terminate this Agreement, deactivate, suspend, or terminate your access
to the Site immediately without notice for any reason, including without
limitation: (A)
infringement of the intellectual property rights of [DEFINED] or third
parties; (C)
inability to verify or authenticate any information you provide to us; (B)
breach of any terms of this Agreement or documents incorporated by
reference; or (C)
the taking of any actions that, in the sole judgment of [DEFINED], may
cause financial loss or legal liability for you, its Users or us. 7.2
In the event [DEFINED] suspends or terminates your access to the Site,
you acknowledge that you may be denied any further access to any User
Materials placed on the [DEFINED] Site. 8 Governing Law and Dispute Resolution
8.1
This Agreement shall be interpreted, construed and governed by the laws
of the State of [STATE], United States of America, without reference to
its laws relating to conflicts of law and not including the provisions
of the 1980 United Nations Convention on Contracts for the International
Sale of Goods. 8.2
Venue for all disputes arising under this Agreement shall lie
exclusively in the State of [STATE] in [COUNTY] County. 8.3
You agree that any and all disputes, claims, or controversies arising
from or relating to this Agreement or the breach, termination, or
validity thereof which cannot be resolved informally shall be resolved
individually, without resort to any form of class action or
consolitation in any arbitration with any dispute, claim, or controversy
of any other party, and shall be submitted to binding arbitration in
accordance with the commercial rules of the American Arbitration
Association then in effect. 8.4
The arbitration panel shall consist of one (1) neutral arbitrator if the
amount in controversy is less than twenty-thousand United States Dollars
($20,000.00), otherwise the panel shall consist of three (3) neutral
arbitrators, each an active, licensed attorney with at least five (5)
years of experience in the primary area of the law as to which the
dispute relates. 8.5
The arbitration shall be in the English language in [CITY], [STATE]. 8.6
The arbitration panel shall determine issues of arbitrability but may
not limit, expand, or otherwise modify the terms and provisions
contained herein. 8.7
Any award made pursuant to this section: (A)
shall be a bare award limited to a holding for or against a Party and
affording such remedy as is deemed equitable, just, and within the scope
of this Agreement; (B)
shall be without findings as to issues, including without limitation,
copyright, trademark, or patent validity or infringement, or a statement
of the reasoning on which the award rests: (C)
may, in circumstances other than patent disputes, include injunctive
relief; (D)
shall be made within four (4) months of arbitration panel appointment;
and (E)
may be entered in any court of competent jurisdiction. 8.8
The requirement for arbitration shall not be deemed a waiver of any
right of termination under this Agreement and the arbitration panel is
not empowered to act or make any award other than based solely on the
rights and obligations of the Parties prior to any such termination. 8.9
Each Party shall bear its own expenses, but those related to the
compensation and expenses of the arbitration panel shall be borne
equally. 8.10
The arbitration panel shall not have authority to award punitive or
damages in excess of compensatory damages, and each Party irrevocably
waives any claim thereto. 8.11
The Parties, their representatives, participants, and the arbitration
panel shall hold the existence, content, and result of the proceedings
in confidence. 8.12
Notwithstanding the foregoing, [DEFINED] reserves and shall have the
sole and exclusive right to commence and prosecute any legal or
equitable action or proceeding before any court of competent
jurisdiction, whether in the United States or in a foreign country, to
collect any fees, recover damages for, or obtain injunctive or other
relief relating to the Site, its operation, or intellectual property if,
in the sole opinion of [DEFINED], such action is necessary or desirable. (A)
You hereby consent and agree to irrevocably submit to the exclusive
personal jurisdiction of such courts, accept service of process by mail,
and irrevocably waive any available jurisdictional, venue, or
inconvenient forum objections to such court. (B)
You hereby agree that such action shall not be deemed a waiver of the
obligation to arbitrate. 8.13
In the event you file an action contrary to the foregoing provisions,
[DEFINED] may recover attorney’s fees and costs up to five-thousand
Unites States Dollars ($5,000). 9 General Provisions
9.1
No action of [DEFINED], other than an express written waiver or
amendment, may be construed as a waiver or amendment of any of this
Agreement. No waiver by either Party of any default shall be deemed as a
waiver of prior or subsequent default of the same of other provisions of
this Agreement. 9.2
[DEFINED] does not guarantee continuous, uninterrupted, or secure access
to the Site, and operation may be interfered with by numerous factors
beyond its control. 9.3
You agree that this Agreement and all incorporated agreements may be
automatically assigned by [DEFINED], in its sole discretion, to a third
party in the event of a merger or acquisition. 9.4
Headings are for reference purposes only and in no way define, limit,
construe, or describe the scope or extent of such section. 9.5
Any failure to act with respect to a breach of the terms and conditions
of this Agreement does not waive any right by [DEFINED] to act with
respect to subsequent or similar breaches. 9.6
All provisions of this Agreement that by their nature should survive
termination shall survive termination, including without limitation,
provisions related to intellectual property, warranty disclaimers,
general releases, limitations of liability, indemnity, arbitration,
governing law, and the general provisions. 9.7
You also may be subject to additional terms and conditions that may
apply when you use affiliate or third party sites, content, or software. 9.8
Should [DEFINED] prevail in any action or proceeding to enforce rights
under this Agreement, it will be entitled to recover its costs and
attorneys’ fees from you. 9.9
You agree that you are subject to the terms and conditions contained in
this Agreement and any additional policies applicable to the Site, which
may be posted from time to time. All such posted policies or rules are
effectivley immediately upon posting and are hereby incorporated by
reference into this Agreement. 9.10
The content of this Site was prepared by [NAME]. Questions, comments, or
requests for additional information regarding any content contained on
the Site or the terms, conditions, policies, or practices described
herein should be directed to [EMAIL]. 9.11
The provisions of this Agreement shall be binding upon and shall inure
to the benefit of the Parties, their heirs, administrators, successors,
and assigns. 9.12
You may not assign this Agreement or the rights and obligations
thereunder to any third party under any circumstances. 9.13
[DEFINED] may assign this Agreement or the rights and obligations
thereunder to any third party without notice. 9.14
You shall be solely responsible for all costs and expenses incurred
arising out of or relating to this Agreement. 9.15
You acknowledge and agree that if you are located in any United States
or international jurisdiction where any common, statutory, regulatory,
codified, or other law, rule, or regulation makes accessing the Site or
any materials contained therein inappropriate, illegal, or subject to
consents or permissions that you have not obtained, or voids this
Agreement in whole or in part, then you are not authorized to access the
Site or any materials contained therein. 10 Revision and Amendment 10.1
[DEFINED] reserves the right to amend or revise this Agreement and any
terms and conditions incorporated by reference herein at any time and in
any manner. Amended or revised terms and conditions shall be effective
immediately and may be posted on the Site. This Agreement may not
otherwise be amended or revised except in a writing signed by both
parties. 10.2
[DEFINED] reserves the right to revise the Site, Content, information,
materials, and available contractual license terms featured on the Site
without notice. 11 General Release
11.1
In the event that you have a dispute with one or more Users or users of
third party sites, you release [DEFINED], its successors, assigns,
affiliates, licensors, and suppliers, together with all of their
repsective officers, directors, employees, and consultants from claims,
demands and damages, both actual and consequential, of every kind and
nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of, or in any way connected with such disputes. 11.2
[DEFINED] does not control the information provided by other Users or
users of third party sites that is made available through the Site. You
may find other Users’ information to be offensive, harmful,
inaccurate, or deceptive. Please use caution, common sense, and practice
safe online behavior when using the Site. Please note that there are
also risks of dealing with underage persons or people acting under false
pretense. Additionally, there may also be risks dealing with
international trade and foreign nationals. 11.3
If you are a California resident, you waive California Civil Code ¤1542,
which states: “A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially
affected his settlement with the debtor.” 12 No Relationship or Agency 12.1
No agency, partnership, joint venture, employee-employer, or franchisor-franchisee
relationship is intended or created herein. 13 Notices 13.1
Except as explicitly stated otherwise, any notices shall be posted on
the site or given via email: (A)
[DEFINED]: [EMAIL] (B)
You: Posted on the Site or via the email address you provided for the
assignment of your ID or during registration of your User Account. 13.2
Notice shall be deemed given twenty-four (24) hours after email is sent,
unless the sending Party is notified that the email address is invalid.
Alternatively, notice may be sent via reputable carrier to the address
provided to [DEFINED] during the registration process. In such case,
notice shall be deemed given three (3) days after the date sent. 13.3
If you believe that any Content appearing on the Site has been or is
being used in a manner that
constitutes copyright infringement, provide the agent designated in
Section 14.4 with written notice that
includes the following information: (A)
an electronic or physical signature of a person authorized to act on
behalf of the owner of the
exclusive right that is allegedly infringed; (B)
identification of the copyrighted work claimed to have been infringed (C)
a description of where the material that you claim is infringing is
located on the Site; (D)
your address, telephone number, and email address; (E)
a statement that you have a good faith belief that the disputed use is
not authorized by the copyright owner, its agent, or the law; (F)
a statement, under penalty of perjury, that the information in your
notice is accurate and that you are the copyright owner or authorized to
act on the copyright
owner's behalf; 13.4
The designated agent for service of notices pursuant to the Digital
Millennium Copyright Act is as follows: [Always Hot Products Inc.] 14 Sexually Explicit Material 14.1
All materials, including messages, communications, and other materials
contained in the Site are intended for distribution exclusively to
consenting adults in locations where all such materials do not violate
any community standards or any local, state, federal, or international
law or regulation. 14.2
No persons under eighteen (18) years of age, or twenty-one (21) years of
age in places where eighteen (18) years of age is not the age of
majority, may directly or indirectly view or possess any of the Content
of the Site or order any goods or services therefrom. 14.3
You hereby acknowledge and represent that you know and understand that: (A)
the materials contained in the Site include explicit visual, audio, or
textual depictions of nudity and sexual activities, including without
limitation, heterosexual, bisexual, homosexual, or transsexual
activities of an explicit sexual nature; (B)
you are familiar with materials of this kind; (C)
you are not offended by such materials; and (D)
by agreeing to the terms and conditions contained herein you are
warranting that you are intentionally and knowingly seeking access to
such explicit sexual materials for your own personal viewing for
entertainment or educational purposes only. 14.4
Any access to the Site or any of its Content by a person less than
eighteen (18) years of age, or twenty-one (21) years of age in places
where eighteen (18) years of age is not the age of majority, shall
constitute unauthorized access to stored communications prohibited by
the Stored Communications Act, 18 U.S.C. Sections 2510-2520 and a
violation of other applicable laws. 15 Force Majeure 15.1
Neither you nor [DEFINED] will be liable for, or will be considered to
be in breach of or default under this Agreement on account of any delay
or failure to perform as required by this Agreement as a result of any
causes or conditions that are beyond the affected Party’s reasonable
control that it is unable to overcome through the exercise of
commercially reasonable diligence. If any force majeure event occurs,
the affected Party will give written notice to the other Party and will
use commercially reasonable efforts to minimize the impact of the event. 16 Severability 16.1
If any court or other tribunal of competent jurisdiction hereof holds
any term, clause, or provision of this Agreement invalid or
unenforceable, then such term, clause, or provision shall be eliminated,
severed, or limited to minimum extent necessary such that this Agreement
will otherwise remain in full force and effect. 17 Entire Agreement
17.1
This Agreement and the terms, clauses, and provisions hereof, as well as
those incorporated by reference, constitutes the entire understanding
and agreement of the Parties, and revokes and supersedes all prior oral
or written agreements between [DEFINED] and the User and is intended as
a final expression of their Agreement. 17.2
You agree that you are not entering into this Agreement in reliance on
any statements, representations, or promises other than those contained
herein. 17.3
This Agreement shall take precedence over any other documents,
incorporated herein or otherwise, which may conflict with this
Agreement. |
