WEBSITE USER AND MEMBERSHIP
TERMS AND CONDITIONS
Effective Date: 07/20/2005
Last Modified: 07/20/2005
I. INTRODUCTORY PROVISIONS:
A. These Web site User and Membership Terms and Conditions govern your use and access to and/or membership in, the following network of Web sites owned by Shrouk, Inc., which currently includes: http://oldspunkers.com, http://chubbyloving.com, http://jimmydiamond.com/, http://spunker.com/, (collectively, the "SITES," or individually, a "SITE" or "we/our"). These Terms and Conditions shall also apply to any site upon which they are posted, regardless of whether the site is specifically named in this paragraph.
B. IMPORTANT! These Terms and Conditions also govern your membership to the SITE if you become a member. By accessing, using, viewing, reading, printing, installing, or downloading any material from the SITE, or becoming a member to the SITE, you agree to be bound by these Terms and Conditions. This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-Sign Act). You manifest your agreement to these Terms and Conditions by any act demonstrating your assent thereto, including clicking any button containing the words "I agree" or similar syntax or merely accessing the SITE, whether you have read these Terms and Conditions or not. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a simple browser program such as Internet Explorer,TM Netscape,TM Opera, or Mozillla Firefox and a computer.
C. Revisions to This Policy: SITE reserves the right to revise, amend, or modify this policy and our other policies and agreements at any time and in any manner. The user should periodically check this web page for any modifications regarding these Terms and Conditions by re-visiting this web page and using the "refresh" button on the user's browser. The user should note the date of last revision to this page, which appears at the top of this page. If the "last modified" date remains unchanged, after the user has clicked the "refresh" button on his/her browser, the user may presume that no changes have been made since the last reading of the document. A changed "last modified" dates indicates that this document has been updated or edited, and the updated or edited version supersedes any prior versions immediately upon posting.
D. If you do not agree to be bound by these Terms and Conditions, you may not enter the SITE, you must exit the SITE immediately, you may not use or access the SITE, and you may not print or download any materials from them. You may use and access the SITE only in accordance with these Terms and Conditions. Please consult these Terms and Conditions regularly and read them carefully before using the SITE. You affirm that you have read this Agreement and understand, agree and consent to its Terms and Conditions.
E. You are solely responsible for obtaining access to the SITE and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the SITE.
II. IMAGES AND CONTENT:
A. These SITES contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other World Wide Web Site owned, operated, licensed, or controlled by SITE (collectively, "Materials").
B. All Materials displayed on the SITE are protected by the First Amendment rights to Free Speech, Free Expression, and Freedom of the Press, and parallel provisions of other constitutional provisions and state constitutions. You acknowledge that the SITE may offer online content that could be deemed "adult" or "erotic" in nature. Additionally, you are on notice that some of the Materials presented on the SITE may contain graphic visual depictions, graphic audio, and descriptions of sexually oriented, explicit, offending, or disturbing activities. You acknowledge that you are aware of the nature of the Materials provided by the SITE, that you are not offended by such Materials, and that you access the SITE freely, voluntarily, and willingly. You also acknowledge that this SITE is intended to contain only images protected by the First Amendment to the United States Constitution.
C. If you are seeking information regarding illegal activities, please leave this SITE immediately. You are further aware of the community standards of your community, and you will only access the content on the SITE if you believe, upon diligent investigation, that the content on the SITE does not offend the community standards prevalent in your community.
D. You further agree not to use or access the SITE if doing so would violate the laws of your state, province or country.
III. AGE OF MAJORITY AND MEMBERSHIP:
A. Age of Majority. You represent and warrant you are at least 18 or 21 years of age, depending on the age of majority in your jurisdiction, and that you have the legal capacity to enter into this Agreement. If you are not at least 18 or 21 years of age, depending on the age of majority in your jurisdiction, you must exit the SITE immediately and may not use or access the SITE or print or download any Materials from them. You may be asked to verify your birth date on the Birth Date Verifier form as a condition of entry onto the SITE, pursuant to 28 U.S.C. §1746. You agree not to bypass any security and/or access feature on this SITE. Additionally, the SITE does not assume any responsibility or liability for any misrepresentations regarding a user's age.
B. Membership. Membership may not be assigned, transferred, or sold to a third party. The SITE and its affiliates disclaim any and all liability arising from fraudulent entry and use of the SITE. If a user fraudulently obtains access, the SITE may terminate membership immediately and take all necessary and appropriate actions under applicable federal, state, and international laws.
IV. NO CHILD PORNOGRAPHY:
You understand that all models appearing on this SITE are, and were at the time of all recorded images, at least 18 years of age, and that our SITE contains no child pornography. If you seek any form of child pornography (including so-called "virtual" child pornography), you must exit this SITE immediately. You acknowledge that all Materials on the SITE are protected by the First Amendment. We take a strong and definite stand against child pornography and only allow images and Materials that are protected by the First Amendment. If you identify any images, real or simulated, depicting minors engaged in sexual activity within the SITE, you are required to report the images to the SITE. Include with your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken. We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If you suspect other outside websites are participating in unlawful activities involving minors, please report them to www.asacp.org. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help users to limit minors' access to harmful material.
V. ACCESS TO, LIMITED LICENSE, AND INTERFERENCE WITH, SITE:
A. Access. To access the SITE or some of the resources it has to offer, you may be asked to provide certain registration details or other information. It is a condition of your use of this SITE that all information you provide will be correct, current, and complete. If the SITE believes the information you provide is not correct, current, or complete, the SITE has the right to refuse you access to the SITE or any of its resources, and to terminate or suspend your access at any time.
B. Limited License. Subject to these Terms and Conditions and in consideration of using the SITE, the SITE hereby grants you a limited, nonexclusive, nontransferable personal license to access and use the SITE and the Materials contained therein. The SITE provides the Materials on this SITE for the personal, non-commercial use by viewers, fans, visitors, subscribers and/or potential subscribers of said SITE. Users of this SITE are granted a single copy license to view Materials (on a single computer only). All Materials on the SITE shall be for private non-commercial use only, and all other uses are strictly prohibited. SITE reserves the right to limit the amount of materials viewed. You agree to prevent any unauthorized copying of the SITE, or any of the Materials contained therein. Any unauthorized use of the SITE or any of the Materials contained therein terminates this limited license effective immediately. This is a license to use and access the SITE for its intended purpose and is not a transfer of title. You represent and warrant that you will not allow any minor access to this SITE and that you will not copy or redistribute any of the content appearing on this SITE. SITE reserves the right to terminate this license at any time if you breach or violate any provision of this Agreement, in which case you will be obligated to immediately destroy any information or materials you have downloaded, printed or otherwise copied from this SITE. Violators of this limited license may be prosecuted to the fullest extent under the applicable law.
C. Interference. Except where expressly permitted by law, you may not translate, reverse-engineer, decompile, disassemble, or make derivative works from our SITE's Materials. User hereby agrees not to use any automatic device or manual process to monitor or reproduce the SITE, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the SITE or any communications on it.
VI. RESTRICTIONS ON USE OF SITE:
A. You may use the SITE only for purposes expressly permitted by the Terms and Conditions of the SITE. You may not use the SITE for any other purpose, including any commercial purpose, without the SITE's express prior written consent.
B. Without the express prior written authorization of the SITE, you may not:
1. Duplicate the SITE or any of the Materials contained therein (except as expressly provided in this Agreement;
2. Create derivative works based on the SITE or any of the Materials contained therein;
3. Use the SITE or any of the Materials contained therein for any public display, public performance, sale or rental;
4. Re-distribute the SITE or any of the Materials contained therein;
5. Remove any copyright or other proprietary notices from the SITE or any of the Materials contained therein;
6. Frame or utilize any framing techniques in connection with the SITE or any of the Materials contained therein;
7. Use any meta-tags or any other "hidden text" using the SITE'S name or marks;
8. "Deep-link" to any page of the SITE (including the homepage);
9. Circumvent any encryption or other security tools used anywhere on the SITE (including the theft of user names and passwords or using another person's user name and password in order to gain access to a restricted area of the SITE);
10. Use any data mining, bots, or similar data gathering and extraction tools on the SITE;
11. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law;
12. Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of your rights to access and use the Materials as granted in Paragraph IV above; or
13. Bookmark any page of the SITE beyond the registration log-in screen.
C. You agree to cooperate with the SITE in causing any unauthorized use to cease immediately. At any time, if the SITE provides a service enabling users to share information or communicate with other users, you hereby agree not to publish, disseminate or submit any defamatory, offensive or illegal material while using the SITE or other services included on the SITE. You are solely responsible for submitting any material that violates any United States or International laws even if a claim arises after your service is terminated, and, by doing so, your actions shall constitute a material breach of this Agreement and the SITE shall terminate all your rights under this Agreement.
VII. MEMBERSHIP:
A. Registration. You are responsible for providing all equipment and the computer necessary to access the SITE. You may access the non-public portion of the SITE only by being a member in good standing to the SITE. The SITE reserves the right to modify Materials and the SITE's design at anytime, with or without prior notice.
1. You may become a member of the SITE by completing an online registration form, which must be accepted by SITE, and you must pay the subscription fee. Upon submission of the online registration form, SITE or its authorized agent will process the application. In connection with completing the online registration form, you agree to:
a. Provide true, accurate, current and complete information about yourself as prompted by the registration form (such information being the "Registration Data") and
b. Maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while you are a member.
2. If you provide any information that is untrue, inaccurate, not current or incomplete, or SITE or any of its authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SITE has the right to suspend or terminate your account and refuse any and all current or future use of the SITE, as well as subjecting you to criminal and civil liability.
3.
B. Member Account, Password, and Security. As part of the registration process, you will be issued a unique user name and password which you must provide in order to gain access to the non-public portion of the SITE. You certify that when asked to choose a username you will not choose a name which may falsely represent you as somebody else or a name which may otherwise be in violation of the rights of a third party.
1. We reserve the right to disallow the use of usernames that we, at our sole discretion, deem inappropriate. We reserve the right to cancel at any time the membership of any member who uses their selected username in violation of these Terms and Conditions or in any other way we, in our sole discretion, deem inappropriate.
2. Your membership, the ID and password are nontransferable and non-assignable.
3. You represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to the SITE to anyone who is below the age of majority in your state, province, or country, or otherwise does not wish to view the content on the SITE.
4. You are solely responsible for maintaining the confidentiality of your user name and password and are fully responsible for all activities that occur under your user name and password. SITE will not release your password for security reasons.
5. Regarding additional password and account security, You agree to:
a. Immediately notify SITE of any unauthorized use of your user name and password or any other breach of security, and
b. Ensure that you exit from your account at the end of each session. You are liable and responsible for any unauthorized use of the SITE until you notify SITE by email regarding that unauthorized use. Unauthorized access to the SITE is illegal and a breach of this Agreement. You indemnify the SITE against all activities conducted through your account. You may obtain access to your billing records regarding charges of your use of the SITE upon request.
C. Membership Fees. Membership fees to the SITE are prominently displayed prior to your subscription thereto. You agree to pay all membership fees when due according to these billing terms. At the time of registration, you must select a payment method. SITE reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. Your account will be deemed past due if it is not paid in full by the payment due date. If your account becomes past due more than thirty (30) days after the invoice date, you agree to pay interest on the past due amount at a monthly rate of 1.5%, or the highest amount allowed by law, whichever is lower, compounded daily, plus any additional collection costs, credits, charge backs and attorney's fees. Your card issuer agreement may contain additional terms with respect to your rights and liabilities as a card holder. You agree to pay all amounts due to us immediately upon cancellation or termination of your account. We reserve the right to make changes to our fees and billing methods, including the addition of supplemental charges for any content or services provided by the SITE, with or without prior notice to you, at any time. This site uses an automatic rebill cycle according to the user's selected payment option.
D. Billing Errors. If you believe that you have been erroneously billed, please notify us immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer. You release us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication.
VIII. TERMINATION:
A. You may cancel your membership at any time by sending an email to the SITE and providing:
1. Our customer service department with a notice of your intent to cancel the membership along with your user name and password; and,
2. Any outstanding fees owed for your membership.
B. You hereby agree to be personally liable for any and all charges incurred by you until termination of membership for goods or services through your use of the SITE. In the event that your account is canceled by you, no online time or other credits will be credited to you or can be converted to cash or other form of reimbursement. This Agreement's provisions shall survive its termination, unless otherwise stated. Upon our processing of your request to cancel your membership, you will no longer have access to the non-public areas of the SITE to which you were a member after your current billing cycle ends.
C. Without limiting other remedies, the SITE may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate your access and use of the SITE and refuse to provide our services to you at any time, with or without advance notice, if:
1. SITE believes that you have breached any material term of these Terms and Conditions or the documents it incorporates by reference;
2. You fail to pay any amount due by the payment due date;
3. We are unable to verify or authenticate any information you provide to us;
4. We believe that your actions may cause legal liability for you, our users or us; or
5. SITE decides to cease operations or to otherwise discontinue any of the SITE or parts thereof.
D. Further, you agree that neither SITE nor any third party acting on our behalf shall be liable to you for any termination of your membership or access to the SITE. You agree that if your account is terminated by SITE, you will not attempt to re-register as a member without prior written consent from SITE.
IX. DISCLAIMER OF WARRANTY:
A. You expressly agree that use of the SITE or any of the materials contained therein is at your own and sole risk.
B. The SITE and all materials contained therein are provided "as is" without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.
C. SITE makes no representations or warranties that the SITE or any materials contained therein will be uninterrupted, timely, secure, or error free; nor does SITE make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy or completeness of the SITE or any of the materials contained therein.
D. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the SITE or any of the materials contained therein is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data.
E. You understand that SITE cannot and does not guarantee or warrant that files available for downloading from the internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. SITE does not assume any responsibility or risk for your use of the internet.
F. SITE makes no warranty regarding any goods or services purchased or obtained through the SITE or any transaction entered into through the SITE and is not responsible for any use of confidential or private information by sellers or third parties.
G. SITE owner may change any of the information found at this SITE at any time without notice including the terms of service without notice. SITE owner makes no commitment to update the information found at this SITE. SITE makes no commitment to update the materials.
H. The warranties and representations set forth in this agreement are the only warranties and representations with respect to this agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.
X. DISCLAIMER:
A. The provision of any services which is in violation of any laws is strictly prohibited. If we determine that you or any user has provided or intends to purchase or provide any services in violation of any law, your ability to use the SITE will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any user providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold us harmless from any liability that may arise should you violate any law.
B. You do also hereby agree to defend and indemnify us should any third party be harmed by your illegal actions or should we be obligated to defend any claims including, without limitation, any criminal action brought by any party not affiliated with this SITE.
C. Our SITE contains material that may be offensive to third parties. You do hereby agree to indemnify and hold us harmless from any liability that may arise from reviewing such material and warrant and agree to cease review of the SITE should you find it offensive.
D. If you are seeking services that are in violation of any applicable laws whatsoever, you may not use this SITE and do hereby agree to exit it immediately. Thus, all disputes relating to the online store shall be directed to the store, and not the SITE.
XI. LIMITATION OF LIABILITY:
A. In no event shall SITE (or its licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to you, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person's use, misuse, or inability to use the SITE or any of the materials contained therein, even if SITE has been advised of the probability of such damages. This is for any matter arising out of or relating to this agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if SITE has been advised of the possibility of such damages.
B. In no event shall SITE'S maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by you for use of a SITE or SITE for a period of no more than one (1) month from the accrual of the applicable cause or causes of action. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
XII. INDEMNITY:
You agree to defend, indemnify, and hold harmless the SITE, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from your, or you under another person's authority including without limitation to governmental agencies, use, misuse, or inability to use the SITE or any of the Materials contained therein, or your breach of any of these Terms and Conditions. SITE shall promptly notify you by electronic mail of any such claim or suit, and cooperate fully (at your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but are not obligated to do so.
XIII. LINKS AND LINKING:
A. Some websites which are linked to the SITE are owned and operated by third parties. Because the SITE has no control over such websites and resources, you acknowledge and agree that SITE is not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
B. You further acknowledge and agree that SITE shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If you decide to access any such third party website, you do so entirely at your own risk and subject to any terms and conditions and privacy policies posted therein.
C. Users further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by this SITE's Terms and Conditions, Spam Policy, Webmaster Agreement, or Privacy Policy, which are incorporated by reference.
D. Links to external websites or the featured model's linked websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by the SITE of such websites or the content, products, advertising or other materials presented on such SITE, but are for user's convenience.
E. Users access them at their own risk. The SITE expressly disclaims any liability for any damages whatsoever incurred by any user in connection with the use of any website, the access to which was found through this SITE. The SITE expressly disclaims any liability derived from the use and/or viewing of any links that may appear on this SITE.
F. All users do hereby agree to hold the SITE harmless from any and all damages and liability that may result from the use of links that may appear on the SITE. The SITE reserves the right to terminate any link or linking program at anytime.
XVI. TRADEMARK INFORMATION:
A. This SITE and the aforementioned names of the SITES are service marks and/or trademarks of the SITE. The terms "OLDSPUNKERS.COM, CHUBBYLOVING.COM, JIMMYDIAMOND.COM, SPUNKER.COM SHROUK, INC., OLDSPUNKERS, CHUBBYLOVING, JIMMYDIAMOND" and "SPUNKER." are considered trademarks of the SITES. We aggressively defend our intellectual property rights.
B. Other manufacturers' product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
C. The SITE's marks, logos, domains, and trademarks may not be used publicly except with express written permission from SITE, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits SITE.
XV. COPYRIGHT INFORMATION:
A. The Materials accessible from the SITE, and any other World Wide Web Site owned, operated, licensed, or controlled by SITE, is the proprietary information and valuable intellectual property of SITE or the party that provided the Materials to SITE, and SITE or the party that provided the Materials to SITE retains all right, title, and interest in the Materials. The SITE and its software are registered with the U.S. Copyright Office.
B. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of SITE, except that you may print out a copy of the Materials solely for your personal use. In doing so, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Materials.
C. Modification or use of the Content except as expressly provided in these Terms and Conditions violates the SITE's intellectual property rights.
D. Neither title nor intellectual property rights are transferred to you by access to the SITE.
E. All Materials included on the SITE, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the property of the SITE or its content suppliers and is protected by United States and international copyright laws. The compilation of all Materials on the SITE is the exclusive property of the SITE or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations. © Shrouk, Inc. (2004-2005), all rights reserved.
XVI. Notice of Claimed Infringement
The SITE respects the intellectual property of others, and we ask our users to do the same. We voluntarily observe and comply with the United States' Digital Millennium Copyright Act. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide SITE's Designated Copyright Agent the following information:
A. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
B. Description of the copyrighted work or other intellectual property that you claim has been infringed;
C. A description of where the material that you claim is infringing is located on a SITE;
D. Your address, telephone number, and email address;
E. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
F. A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
G. You may send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
Weston, Garrou, DeWitt & Walters
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 389-4529
Fax: (407) 774-6151
Please do not sent other inquires or information to our Designated Agent.
XVII. NOTICE AND TAKEDOWN PROCEDURES:
The SITE implements the following "notice and takedown" procedure upon receipt of any notification of claimed copyright infringement:
A. The SITE reserves the right at any time to disable access to, or remove any material or activity accessible on or from the SITE or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.
B. It is the firm policy of the SITE to terminate the account of repeat copyright infringers, when appropriate, and the SITE will act expeditiously to remove access to all material that infringes on another's copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act ("DMCA"). The SITE's DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with Paragraph 19 and §512 of the DMCA, but does comply with three requirements for identifying SITE that are infringing according to §512 of the DMCA, the SITE shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements.
C. When the Designated Agent receives a valid notice, the SITE will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within 10-14 days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity.
D. The SITE reserve the right to modify, alter or add to this policy, and all users should regularly check back to these Terms and Conditions to stay current on any such changes.
XVIII. EXPORT CONTROL:
A. You understand and acknowledge that the software elements of the Materials on the SITE may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States' or international law is prohibited.
B. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
C. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that you will abide by such laws and regulations.
D. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
XIX. NO AGENCY RELATIONSHIP:
Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
XX. NOTICE:
A. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on the SITE, or personal delivery by commercial carrier such as FedEx or Airborne. Notices by customers to SITE shall be given by electronic messages unless otherwise specified in the Agreement.
B. Change of Address. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
D. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
XXI. COMMUNICATIONS NOT PRIVATE:
SITE does not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to SITE shall be deemed to be readily accessible to the general public. Visitors should not use this SITE to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages entered into this SITE can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.
XXII. FORCE MAJEURE:
SITE shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, including Y2K errors or omissions, for so long as such event continues to delay the SITE's performance.
XXIII. GENERAL PROVISIONS:
A. Governing Law. These Terms and Conditions and all matters arising out of, or otherwise relating to, these Terms and Conditions shall be governed by the laws of the State of Florida, excluding its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the State of Florida. Exclusive venue for any litigation or arbitration permitted under this Agreement shall be with the state and federal courts located in Orange County, Florida.
B. Rights to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party's breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
C. Binding Arbitration. If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Orange County, Florida, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of these Terms and Conditions; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
D. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
E. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of these Terms and Conditions, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of these Terms and Conditions will continue in full force and effect.
F. Attorney's Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney's fees and costs incurred in connection therewith, including attorney's fees incurred on appeal.
G. No Waiver. No waiver of SITE shall be deemed a waiver of any subsequent default of the same provision of these Terms and Conditions. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from these Terms and Conditions.
H. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of these Terms and Conditions.
I. Complete Agreement. These Terms and Conditions constitute the entire agreement between the parties with respect to your access and use of the SITE and the Materials contained therein, and your membership with the SITE, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
J. Modifications. SITE reserves the right to change any of the provisions posted herein and you agree to review these Terms and Conditions each time you visit the SITE. Your continued use of the SITE following the SITE's posting of any changes to these Terms and Conditions constitutes your acceptance of such changes. The SITE does not and will not assume any obligation to provide you with notice of any change to these Terms and Conditions. Unless accepted by SITE in writing, these Terms and Conditions may not be amended by you.
K. Government Rights. The software elements of the Materials have been developed at private expense and are "commercial computer software" or "restricted computer software" within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (1) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (2) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense. You further agree not to upload to our SITE any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.
L. Other Jurisdictions. SITE makes no representation that the SITE or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the SITE from such locations do on their own initiative and are solely responsible for compliance with all applicable local laws.
COMPLAINTS CALIFORNIA RESIDENTS
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
This document was prepared by Lawrence G. Walters, Esq., of www.FirstAmendment.com.