Last Updated July 30, 2020
Terms and Conditions
Last Modified: August 19th, 2020
1. PRELIMINARY PROVISIONS:
1.1. Introduction – Welcome to Our Website’s Agreement which, together with any documents it expressly incorporates by reference (hereinafter “Terms and Conditions” or “Agreement”). The provisions of this Agreement will govern Your use and access of Our Website(s), and You should therefore take some time to read it carefully. Even if you have reviewed this page before, please review closely as some provisions may have changed since you last reviewed the Agreement. Our Website allows Studio Members to upload media files for purchase by Users of the Website, and this Agreement governs the terms related to Your Content and Our distribution of it to other Users. We hope that You thoroughly enjoy Our Services and anticipate that You will find Our Site useful and informative. Should You have any questions or comments regarding Our website, or its policies, please feel free to contact Us at: email@example.com. The laws of Your individual city, county, state, province or nation may regulate the activity found on the Site. Check Your local laws before taking part in any such activities.
1.2. Additionally, through the use of these Terms and Conditions, We are placing legal conditions on Your use of this Website and making certain promises to You.
1.3. Our first condition is that You must agree to all of the conditions in this Agreement. You do not need to use Our Website, therefore if You do not wish to be bound by each and every provision in this Agreement, then You are not welcome to use this Website and should leave and use another service.
1.4. If You do not understand all of the terms in this Agreement, then You should consult with a lawyer before using the Website.
1.5. This Website is for adults only. If you are under the age of eighteen (18) You are not to use this Website at all. Misrepresentation of your age to gain access to Our Website is considered a breach of this agreement and computer hacking under federal law. If you are under eighteen (18) years of age, STAY OUT!
1.6. Party Definitions and Introductory Terms
1.6.1. “We” or “Us,” means Red Planet Ltd, which is the operator of the above referenced websites (hereinafter collectively referred to as “Website” or “Site”) and provider of related services (which include allowing Studio Members to upload content to the Site while providing a facility for other Customers and Customer Members to purchase, download, stream and/or view such content) and means also Red Planet, which provides billing services in relation with the Website (hereinafter collectively referred to as “Services”). It should be obvious, but for the sake of legal clarity, when this Agreement uses first-person pronouns such as “Us,” “We,” “Our,” “Ours,” etc., those first-person pronouns are referring to the Website.
1.6.2. “You,” the User – As a User of this Website, this Agreement will hereinafter refer to the User as “You” or through any second-person pronouns, such as “Yours,” etc. Hereinafter, the User of the Website shall be referred to in applicable second-person pronouns.
1.6.3. Visitors, Customer Members, Customer, Users, and Studio Members – A “Visitor” is someone who merely visits and views Our Site without purchasing content provided by our Studio Members or uploading content for purchase. A “Customer Member” is someone who has created a customer account via the Site facilitating the purchase, download, stream and/or viewing of Studio Member content. A ” Customer” is someone who visits Our Site and purchases Studio Member content without having a Customer Member account. A “Studio Member” is someone who has created a Studio account via the Site for the purpose of providing content to be sold, downloaded, viewed and/or streamed by Customers or Customer Members. For the purposes of this Agreement, all Customers and Studio Members are Users, but not all Users are Customers or Studio Members. This Agreement applies to all Users whether they are Customers, Customer Members, Studio Members or not. You become a User by accessing this Site in any way, and a “User” refers to Visitors, Customer Members, Customers, and Studio Members collectively. You need not become a Customer Member, a Customer or a Studio Member of the Site to make this Agreement apply to You.
1.7. Consideration – Consideration for Your knowing acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Website and Our Services. You agree that such Consideration is both adequate, and that it is received upon Your viewing, accessing, streaming or downloading any portion of Our Website.
1.8. Revisions to this Agreement
1.8.1. From time to time, We may revise this Agreement. We reserve the right to do so, and You specifically agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
1.8.2. If We change anything in this Agreement, We will change the “Last Modified Date” at the top of this Agreement. The Agreement is located at https://fetishdl.com/terms-and-conditions, and a link to the Agreement is also at the bottom of the home page of the Site. You agree to periodically re-visit this web page, and to use the “Refresh” button on Your browser when doing so. Upon each visit, You agree to note the date of the last revision to this Agreement. If the “Last Modified Date” remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “Last Modified Date” has changed, then You can be certain that something in the Agreement has been changed, and You agree that You will re-review the Agreement in its entirety and that You will agree to its terms or immediately cease use of any Website applicable to this Agreement. Your continued Use of the Site or Services after any such revision shall be deemed to be Your acceptance of all revisions.
1.8.3. Waiver – if You fail to re-review this Agreement as required to determine if any of the terms have changed, You assume all responsibility for such omissions and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended Agreement. We are not responsible for Your neglect of Your legal rights.
1.8.4. Although this User Agreement represents the primary terms and conditions of service for the Site, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on Our Site and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
2. ACCEPTANCE AND AFFIRMATION:
2.1. You must agree to all of the terms in this Agreement before using the Website or Our Services. If You fail to agree to the terms in this Agreement, You understand that You are an unauthorized user of Our Website and Services, despite any payments made or Services sold to You. No act or omission by Us should be interpreted as a waiver of the requirement that You assent to this Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Our Services. However, if You fail to agree to the terms in this Agreement, You stipulate to and agree to pay Us two hundred and fifty dollars ($250) each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including Attorneys’ fees and costs, incurred in collecting this unauthorized access fee from You.
2.2. How You can and will demonstrate Your affirmative acceptance of all of the terms in this Agreement:
2.2.1. You manifest Your agreement to this User Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked a button containing the words “ENTER” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract; or
2.2.2. Via electronic means. As this Agreement may be accepted electronically, Your acknowledgement of assent by e-mail, facsimile, or other electronic means, shall constitute valid acceptance of the provisions contained herein and shall obligate the transmitting party in addition to any registered account associated with such party; or
2.2.3. If You click any link, button, or other device, provided to You in any part of Our Website’s interface, then you have legally agreed to all of these Terms and Conditions; or
2.2.4. By using any of Our Services in any manner, including uploading Your Content to Our Site, You understand and agree that We will consider such use as Your affirmation of Your complete and unconditional acceptance to all of the terms in this Agreement.
2.3. If You are seeking information regarding any illegal or inappropriate activities, please leave this Site immediately and do not attempt to use the Services. You acknowledge that You are aware of the community standards in your community, and You will only access the content on the Site and/or use the Services if You believe that the content on the Site does not offend the community standards prevalent in Your community.
2.4. You agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or country.
3. ACCESS AND USER STATUS:
3.1. Access and Limited License – All Users may access certain public areas of the Site. You understand that all We are selling or providing You is access to Our Site or Services as We may provide them from time to time. You need to provide Your own access to the Internet, and any fees that You incur to access Our Site are Your sole responsibility. We are not providing any hardware nor software to You – and You need to purchase or license the necessary hardware and software to access the Site. This User Agreement covers all public and non-public areas of the Site.
3.2. Account Creation: To fully access the Site, provide Your Content and/or purchase, download, view and/or stream Studio Member content, You must register as a Customer, a Customer Member or a Studio Member. Please see Section 1.6.3 for further information regarding Our categories of Users. To register, You must complete the registration process by providing Us with accurate information as prompted by the respective registration form. You also will choose a password and a username. We may refuse the registration to any new Customer, Customer Member or Studio Member at Our sole discretion.
3.3. Terminating Your Account: Either You or We may terminate Your Master Account with Us at any time with or without cause. Your only right with respect to any dissatisfaction with any (i) term within this Agreement or policy or practice We use in operating the Site or Service, (ii) content available through the Site, or (iii) if you are a Studio Member, the amount or type of fees or billing methods, or change therein, is to terminate Your Studio Member master account (“Master Account”) with Us by notifying Our Member Support of Your desire to terminate by firstname.lastname@example.org. Your notice of termination will be effective upon receipt by Us, or upon receipt of confirmation if confirmation is requested.
3.3.1. For Studio Members, any of Your Content that has posted on the Site for less than ninety (90) days must first meet the ninety (90) day eligibility requirement before it can be removed, regardless of whether You choose to terminate Your Master Account. Any fees due to You at the time of termination will be held for a period of ninety (90) days. In the event Your Master Account is terminated for violating any provision of this Agreement, or for violating Our rules, polices or restrictions, any funds owed to You will be forfeited to Us.
3.4. Reimbursement of Legal Expenses: In the event We are required to incur fees or costs to respond to any inquiry, request, subpoena, or legal proceeding relating to Your account, We reserve the right to seek reimbursement from You for any such expenses, including, but not limited to, costs of research, copies, media storage, mail and document delivery, as well as any applicable legal fees. These expenses may be deducted from any amounts owed to You.
3.5. Studio Members Accounts: You are responsible for providing all equipment and the computer necessary to access the Site. We reserve the right to modify the Services and the Site’s design at any time, with or without prior notice. You may become a Studio Member of the Site by completing an online registration form, which must be accepted by Us. Additional information about registration requirements can be found here: https://fetishdl.com/register. 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 provide true, accurate, current and complete information about Yourself as prompted by the Studio Member account registration form (such information being the “Studio Member Registration Data”); and You further agree to maintain and promptly update Your Studio Member Registration Data to keep it true, accurate, current and complete at all times while You are a Studio Member. All Studio Members who register online for Our Site and Services will receive a password and a Master Account.
3.5.1. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and Your tax related information. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your Master Account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability.
3.5.2. Studio Member Names: Upon Your registration as a Studio Member of Our Site, You may be asked to choose a user name to identify Yourself to other Users and Our staff. You may not select or use a user name of another Studio (unless it is also your name), or a name which violates any third party’s trademark right, copyright, or other proprietary right, which is or may be illegal, which may cause confusion, or which We deem in Our discretion to be vulgar or otherwise offensive. We reserve the right to delete any vulgar or otherwise offensive user name, or to require deletion thereof.
3.5.3. Account Responsibility: Studio Member agrees that We shall be irreparably harmed by unauthorized access to Our computer systems, databases and Site, and to notify Us immediately of any unauthorized use of Studio Member’s password or accounts, as well as any other breach of security. Studio Member acknowledges and agrees that (1) We have invested substantial time and resources in establishing the computer systems and databases that allow for the operation of Our Site and (2) it is necessary for Us to protect Our Site and its related computer and database systems, as well as its intellectual property, from unauthorized access.
3.5.4. Studio Member further agrees that it shall maintain any Customer related information provided to the Studio Member by the Site as confidential and sensitive information, and will not share such information with any unauthorized third parties. We have the right to suspend or terminate Your Master Account and refuse any and all current or future use of the Site and Services, and take other appropriate legal action for any violation of this provision.
3.5.5. Subject to Your supervision and assumption of all resulting liabilities, You may specify any third party Studio Member Names who will have the right to access and administer Your Master Account on Your behalf. With the sole exception of the designated Studio Member Names associated with Your Master Account, You shall not share Your password, or allow third parties to use or access Your Master Account, as any such access is unauthorized for the purposes of this Agreement. Studio Member acknowledges and agrees that any unauthorized access to Our Site is strictly prohibited and We shall prosecute any violators to the fullest extent permitted by law. You are responsible for: (a) any and all activities conducted through Your Master Account, this includes any activities occurring with or without Your knowledge by Studio Member Names associated with Your Master Account; (b) maintaining the confidentiality of your password(s) and Master Account(s) and ensuring that any Studio Member Names associated with Your Master Account do the same; (c) disclosing to Us a complete and current listing of those Studio Member Names who are authorized to access the Master Account on Your behalf; (d) notifying Us immediately of any unauthorized use of Your password or Master Account(s) as well as of any other breach of security; (e) ensuring that all activities that occur in conjunction with the operation of Your Master Account comply with the terms of this Agreement.
3.5.6. By uploading media content (“Your Content”), You agree to give Us irrevocable, transferrable, nonexclusive royalty-free rights to use Your Content for any purpose, including publication, display, modification, creation of derivative works for the promotion and advertisement of Your Content and Our Site. You further agree that, notwithstanding Your removal of Your Content from Our Site, You grant Our Users the irrevocable and nonexclusive royalty-free right to continue to view and use Your Content. Once submitted to Us, You may not remove Your Content from the Site until after Your Content has been posted for ninety (90) days, regardless of whether You choose to terminate Your Master Account. To be clear, once content is uploaded to Us, You must allow Us the opportunity to license Your Content for at least ninety (90) days.
3.5.7. You agree that Your Content will comply with all provisions set forth in this Agreement, including the Acceptable Use Policy in Section 6.3.1 of this Agreement. You are responsible for all content You upload or otherwise provide via Your Studio.
3.5.8. Unless We specifically agree otherwise in writing, Studio Member will not, and will use commercially reasonable efforts to make sure a third party does not: (a) access or copy Your Content or Your Master Account through any automated technology or other unauthorized means, including without limitation, “robots,” “spiders,” or that sends more requests to Our servers than can be reasonably undertaken by a human using a commercially available web browser within a reasonably acceptable time to cure; (b) disable, circumvent, or otherwise interfere with security features established by Us that prevent unauthorized access to Your Content or Your Master Account; (c) attempt to reverse engineer Our Services, Our Site or any of their parts or components; (d) or attempt to create a substitute or similar service or website through the use of, or access to, Your Content or Your Master Account.
3.5.9. You agree that neither Us nor any third-party acting on Our behalf shall be liable to You for any termination of Your Membership or access to the Site or Services. You agree that if Your Master Account is terminated by Us, You will not attempt to re-register as a Studio Member – using the same or different username – without prior written consent from Us. Active Studio Members may not knowingly allow former Studio Members who have been terminated to use the active Studio Members’ Master Account(s).
3.5.10. Rates: We will pay You, Studio Members, the fees further described and specified on the Site (or by separate schedule) for each completed purchase of Your Content, whether it is a video, image, DVD-VHS or a membership to Your Studio Member account, etc. Detailed information concerning Studio Member “studios” may currently be found at https://fetishdl.com/register. Such payments are carried out on a monthly basis and are subject to minimum payout amounts. Fees are calculated based on the transactions carried out to purchase Your Content or subscribe to your Studio Member store, and are not based on the amount of downloads, views or streams of Your Content.
3.5.11. Section 2257 Records and Other Documents: All Studio Members must maintain all records required by Title 18 U.S.C. § 2257 and 28 C.F.R. 75.1, et seq., as amended (“Section 2257), along with any model releases, license agreements, photographer agreements, and other documentation relating to the legality and ownership of any content distributed through the Site. You further agree to promptly provide copies of all such documents upon our request at any time, in Our sole discretion.
3.5.12. We are a marketplace facilitator with respect to the content sales by our Studio Members on the Websites. Where required by applicable U.S. state law or European law, We are assuming the rights and duties of a seller with respect to taxable sales of content by our Studio Members through the Websites. In countries, states or provinces where required by applicable tax laws (including certain U.S. states and certain European countries) we have registered with the applicable tax authorities and will collect and remit Value-Added Tax or VAT, sales tax, excise tax or other consumption taxes on taxable sales of content by our Studio Members through the Websites. We will deduct and withhold from any amount payable to our Studio Members such amounts as we are required to deduct and withhold with respect to such payment under the provision of any applicable laws, and remit such deduction and withheld amount to the applicable and competent tax authorities.
3.5.13. Notwithstanding the foregoing, it remains the Studio Member’s responsibility to remit all applicable Value-Added Tax or VAT, sales tax, excise tax or other consumption taxes not deducted and withheld by Us to the applicable and competent tax authorities to the extent any such tax payment is paid to our Studio Members and to the extent our Studio Members are required by applicable tax law to do so.
3.5.14. Notwithstanding anything to the contrary hereunder, Studio Members hereby undertake to hold Us harmless and to indemnify Us, Our affiliates and Our agents, from any claims made against Us and them by third parties, including tax authorities, in regard of any Value-Added Tax or VAT, sales tax, excise tax or other consumption taxes, or any withholding thereof, with respect to our Studio Members’ content purchased by, or licensed to Users. Notwithstanding anything to the contrary in this Agreement, Studio Members agree and understand that they are solely responsible for the payment of all government, state, and local taxes, levies or any other similar fees.
3.5.15. Studio Members will be able to generate monthly earning reports through the Studio Members’ store administration section of their accounts. Detailed reports will be made available to Studio Members with more information on the amount of Value-Added Tax or VAT, sales tax, excise tax or other consumption taxes charged on transactions in relation with our Studio Members’ Content.
3.6. Customer Purchases and Customer Member Accounts:
3.6.1. Customer Purchases: You are responsible for providing all equipment and the computer necessary to access the Site. We reserve the right to modify the Services and the Site’s design at any time, with or without prior notice. In connection with completing the purchase of any content provided by Our Studio Members, You agree to provide true, accurate, current and complete information about Yourself as prompted by the purchase form (such information being the “Purchase Data”).
3.6.2. Customer Member Account: You are responsible for providing all equipment and the computer necessary to access the Site. We reserve the right to modify the Services and the Site’s design at any time, with or without prior notice. You may become a Studio Member of the Site by completing an online registration form, which must be accepted by Us. Additional information about registration requirements can be found here: https://fetishdl.com/register. 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 provide true, accurate, current and complete information about Yourself as prompted by the Customer Member account registration form (such information being the ” Customer Member Registration Data”); and You further agree to maintain and promptly update the Customer Member Registration Data to keep it true, accurate, current and complete at all times while You are a Customer Member. All Customer Members who register online and create a Customer Member account for Our Site and Services will receive a password and a corresponding Master Account. We have the right to disable any username, password or other identifier, whether chosen by You or provided by Us, at any time in our sole discretion for any or no reason whatsoever, including if, in our opinion, you have violated any provision of this Agreement.
3.6.3. By choosing or receiving a password, a username or any other information for security purposes in relation with Your Customer Account, You agree to treat such information as confidential, and You agree not disclose it to anyone else. You are fully responsible for all activities that occur under Your username, password and corresponding account. Your account is personal to You and agree not to provide any other person with access to Our Site or portions of our Site using your username, password or other credentials or security information. You agree to ensure that you log out or exit from Your account at the end of each session. You should use caution when accessing Your account from a public or shared computer in order for others not to be able to view or record your password or other personal information. You shall notify Us immediately of any unauthorized access to or suspect use of Your username or password or any other security breach by contacting us at email@example.com. We are not be liable for Your losses caused by unauthorized uses of Your account and You may be liable for the losses of the Site or others dues incurred by Us resulting or in connection with such unauthorized use.
3.6.4. You must promptly inform Us of all changes relating to Your Customer Member Registration Data, including, but not limited to, changes in Your address, email, payment methods such as Your credit card used in connection with billing for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your account. If You fail to reimburse Us for any credit card chargebacks, dishonored checks, or related fees within thirty (30) days of Our initial demand for reimbursement, You agree that You will pay Us one hundred dollars ($100) in additional liquidated damages for each fee incurred.
3.6.5. Refunds We are merely the hosting provider for our Studio Members to display their content. Due to the nature of how downloads of content are processed and the consumption of content in its electronic form occur, We uphold a no refund policy. Customers and Customer Members are responsible for ensuring their order is correct before purchasing the media or content from one of Our Studio Members. Prior to submitting Your order for processing and billing, please ensure that You do not order the same clips twice. In addition, media credit purchases are non-refundable. In the event that You are banned by Us for chargebacks, You agree that You will pay Us twenty five dollars ($25) per order fee if You wish to reimburse Us in order to reinstate Your account. This chargeback fee is in addition to the total amount of the orders.
3.6.6. Please report any billing errors to firstname.lastname@example.org. Resolution of billing errors by Us will be handled immediately. Any fraud or abuse by You in disputing Your transaction with the issuing bank will result in immediate disqualification from future sales and You will be banned from ordering from Our Site. We take fraud very seriously and will actively report cases of fraud to the local authorities for further prosecution.
3.6.7. Further, You agree that neither Us nor any third-party acting on Our behalf shall be liable to You for Your disqualification from future transactions or access to the Site or Services. You agree that if You are disqualified by Us, You will not attempt to purchase from Us – using the same or different Purchase Data – without prior written consent from Us.
3.6.8. Clips, videos, and images that are purchased from this Site cannot be swapped or traded. We aggressively enforce Our intellectual property rights. Any infringement, including those related to swapping, trading, or reposting of clips, videos, and images will be prosecuted to the fullest extent of the law. Exchanges will only be given if a video is faulty or defective upon receipt. All videos must be exchanged within fifteen (15) days. Any purchased content from Studio Members will not be available in Your Customer Member account in the event that Your account is deleted, canceled or terminated by You or Us in accordance with these Terms and Conditions.
3.6.9. Restrictions on Donations: You may send monetary donations, gifts, and tributes to Studio Members from time to time. You acknowledge and agree that there are no goods (tangible or intangible) and no services being provided to You, including but not limited to meetings and travel, by sending the donations, gifts, and tributes. You agree that donations may not be used to engage in, promote, or facilitate any illegal activities.
3.6.10. In order to maintain the integrity of the Site and Services, or to investigate complaints, You agree to allow Us to access information You have submitted or created for as long as reasonably required to investigate the complaint or protect the Services. You also agree to allow Us to access Your information to enforce this Agreement, its intellectual property policy, to comply with the law and legal process, to operate its systems properly, to protect itself, its members, or users.
4. SPECIAL CONSIDERATIONS REGARDING MINORS:
4.1. Age of Majority. In order to use the Website or any services provided by Us, You must have attained the age of majority in Your jurisdiction. You represent and warrant that You are at least eighteen (18) or twenty-one (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. We may, in Our sole discretion, require that You provide proof that You have attained the age of majority in Your jurisdiction prior to using Our Site or Services.
4.1.1. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age, and We may, in Our sole discretion, monitor any area of the Site or any other records pertaining to the Site for compliance with this Agreement or for any other reason.
4.1.2. You represent and warrant that You will not allow any minor to access this Website. 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. You acknowledge that if Your computer can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by minors. You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to keep Our erotic content from being displayed to Your children or wards.
4.1.3. All depictions distributed through Our Site are of persons over the age of eighteen (18) as of the date of the production of the depiction. We have a zero-tolerance policy with respect to any underage material.
4.1.4. In the event We identify any apparent underage depictions of sexual activity, We will cooperate with law enforcement authorities and submit a report to the Cyber Tipline operated by the National Center for Missing and Exploited Children (NCMEC).
5. IMAGES AND CONTENT:
5.1. Our Website contains images and content, including but not limited to text, software, images, graphics, data, messages, and other information – some of which may be provided by third parties, including Our Studio Members (collectively, the “Materials”).
5.2. You acknowledge and stipulate that all of the Materials are expressive content that is fully protected by the First Amendment to the United States Constitution. If You are offended by any Materials on the Site, You agree to immediately cease using the Site and Services.
5.3. You acknowledge and understand that some of the Materials contain mature depictions of adult oriented activity, including audio portions of the same kind of content, and descriptions of adult oriented and mature activities. You acknowledge that You are aware of the nature of the Materials provided by Our Website and that You are not offended by such Materials, and to the contrary, that You are accessing this Website specifically because You enjoy such expressive content and You wish to view such Materials. You stipulate that You access this Website freely, voluntarily, and willingly, and for Your own personal enjoyment.
5.4. You agree not to use or access the Website if doing so would violate the laws of Your state, province, or country.
5.5. Our Site may not be used to promote or facilitate prostitution, regardless of the legality of the activity in Your jurisdiction.
5.6. We take a strong stance against any form of human trafficking. In the event We discover that any of Your Materials involve underage individuals, or any form of force, fraud or coercion, we will remove the Materials, terminate this Agreement, and submit a report to the proper law enforcement authorities.
5.7. User-Generated Content Our Site permits the submission and transmission of content solely generated by third-parties (“User Generated Content”), as well as the hosting, sharing, and/or publishing of such User Generated Content, which may include Content provided by Our Studio Members. You understand that whether or not such User Generated Content is published, We do not guarantee any confidentiality with respect to any submissions.
5.8. Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material. You agree not to allow minors to view any such content, and You agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services by typing terms such as “parental controls” into an internet search engine. Please note that We make no representation or warranty regarding any of the products or services referenced on third party sites, and We recommend that You conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing Our Site or the content received via Our Services if Your computer or mobile device can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site or Services from being displayed or accessed by Your children or wards.
Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that We operate as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication or transmission of third-party content, which includes content provided by Our Studio Members, as well as the content of other Users and third parties. We do not create such content, and We are not responsible for the publication of remarks or communications of third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Us to remove or block any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our status as the provider of an interactive computer service. In the event that any court finds that any third party communication or third party content on Our Website falls outside of the realm of the immunity provided by Section 230 of the CDA, this shall not be deemed to be a waiver of any legal protections provided by Section 230 for any and all other content posted on Our Website. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this Agreement between You and Us.
5.9. License to Use Your Content: With the exception of personal financial and billing information, You hereby grant to Us the perpetual, unlimited, royalty-free, worldwide, non-exclusive (except for Studio Members opting to exclusively license their content to Us (“Exclusive Studio Members”)), irrevocable, transferable license to run, display, copy, reproduce, publish, bundle, distribute, market, create derivative works of, adapt, translate, transmit, stream, arrange, modify, sub-license, export, merge, transfer, loan, rent, lease, assign, share, outsource, host, make available to any person or otherwise use, any text, images, data, video or other information and content You provide on or through this web Site or Services or which is sent to Us or others by e-mail or other correspondence, for any purpose whatsoever. We shall not be subject to any obligations of confidentiality regarding any such information unless specifically agreed by Us in writing or required by law. We shall not be obliged to delete any such information from the Site. Note that the license set forth in this paragraph shall be an exclusive license from You to Us should You become an Exclusive Studio Member. All other license terms in this Agreement shall remain the same for Studio Members and Exclusive Studio Members. In no circumstances will We be liable towards You for any exploitation of any of Your Content published on the Site. You also hereby grant each User of the Website a non-exclusive, royalty free license to access Your Content through the Site, and to use, reproduce, display, communicate, and perform Your Content as permitted through the functionality of the Site and under this Agreement.
5.9.1. You represent and warrant that You have the right to grant the license set out above.
5.9.2. The copyright of all content uploaded by You is retained by You. You may not upload content for which You do not own the copyrights. Any Studio Member found uploading material that they do not have rights to will have all their Studio Member store closed and all funds frozen. We have a ZERO TOLERANCE policy for piracy. We follow the Digital Millennium Copyright Act Notice and Takedown procedure for copyright infringement complaints by third parties. See: https://fetishdl.com/dmca
5.9.3. By uploading any photographs, videos or other media of Yourself or other subjects, You hereby swear that You own or control all intellectual property, publicity, and privacy rights with respect to the uploaded contents; and You hereby irrevocably grant a non-exclusive right (except for Exclusive Studio Members who grant an exclusive right) and license to Us to:
18.104.22.168. Reproduce, transmit, communicate, display, or distribute Your Content, on or as part of Our Site(s), on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
22.214.171.124. Reproduce Your Content in digital form for display, streaming or download via the Internet (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hypertext links);
126.96.36.199. Adapt, modify, or alter Your Content or otherwise create derivative works based upon Your Content; and for all other reasonable promotional or commercial uses either as part of the operation of Our Site(s), or as a promotion or operation of any derivative or related businesses.
5.9.4. By uploading a model release or otherwise representing that subjects depicted in Your content have consented to publication by Us for whatever purpose, You warrant that the information is complete and accurate.
5.10. We, at our sole discretion, may remove any content uploaded to the Site. We also reserve the right, but do not assume the responsibility, to restrict conduct which We deem in our discretion to be harmful to individual members, damaging to the communities that use Our Site or Services, or may be in violation of Our’s or any third party’s rights.
5.11. You are responsible for maintaining backup copies of any content uploaded to the Site. We do not provide archiving or backup services.
6. RESTRICTIONS ON USE OF WEBSITE:
6.1. You agree that You will only use the Website for purposes expressly permitted and contemplated by this Agreement. You may not use the Website for any other purposes without Our express prior written consent.
6.2. Without Our express prior written authorization, You may not:
6.2.1. Duplicate, translate, reverse-engineer, decompile, disassemble any part of the Website or the Materials contained therein (except as expressly provided elsewhere in this Agreement);
6.2.2. Redistribute or create any derivative works based on the Website or any of the Materials contained therein. You agree that any such use is NOT “fair use;”
6.2.3. Use the Website or any of the Materials contained therein for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT “fair use;”
6.2.4. Remove any copyright or other proprietary notices from the Website or any of the Materials contained therein;
6.2.5. Circumvent any encryption or other security tools used anywhere on the Website (including the theft of user names and passwords or using another User’s account and password in order to gain access to a restricted area of the Website, unless otherwise authorized by this Agreement); or use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it.
6.3. You agree to all of the terms of Our Acceptable Use Policy, as outlined below:
6.3.1. Acceptable Use Policy: You agree and understand that Our Website and Services enable You to upload or otherwise “post” Your Content to Our Site and/or to communicate with other Users. However, You expressly warrant and represent that Your Content does not contain any of the unacceptable attributes below. The Website and Services may only be used for lawful services, and may not be used to promote any activity that We believe is inappropriate or potentially illegal. Although the Site undertakes no obligation to monitor user content, You expressly agree that You:
188.8.131.52. Will not use Our Services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive any content that is, in Our discretion, defamatory, obscene, harassing, illegal, involves underage participants, or is otherwise objectionable.
184.108.40.206. Will not post content that violates the content restrictions found here: https://fetishdl.com/register
220.127.116.11. Will not post content that is unlawful, harmful, threatening, abusive, harassing, defamatory, invasive of another’s privacy or right to publicity, or harmful to minors in any way, shape, or form;
18.104.22.168. Will not post content that might be considered to be impersonating another person or legal entity;
22.214.171.124. Will not post any personally-identifying information about another person without that person’s prior explicit consent;
126.96.36.199. Will not post personally-identifying content about yourself, other than information provided during the registration process;
188.8.131.52. Will not post content that constitutes SPAM or bulk posting of commercial advertisements for commercial interests;
184.108.40.206. Will not post content that is stolen or otherwise infringes upon any trademark, copyright, or other intellectual property rights of any party;
220.127.116.11. Will not post content that libels, slanders, or disparages any person or group of people based on race, ethnicity, national origin, religion, sex, or other factors at Our discretion.
18.104.22.168. Will immediately cease and desist from any contact with any person who so requests such cessation;
22.214.171.124. Will not use Our Services to “stalk” or otherwise harass any other person;
126.96.36.199. Will not use Our Services in order to collect any personal data about other users, including but not limited to using the Services to solicit research, user statistics, or other commercial activities;
188.8.131.52. Will not use Our Services in order to promote, enable, or conduct any illegal activities at all;
184.108.40.206. Will not use Our Services in order to engage in, promote, or facilitate prostitution or human trafficking.
220.127.116.11. Will not use Our Services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way;
18.104.22.168. Will not use Our Services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive drugs or other illegal substances in any way.
22.214.171.124. Will not violate any of the Rules relating to content posted on Our site, here: https://fetishdl.com/register
6.3.2. In addition to termination of Your Studio Member Account, Customer Member Account, or customer access to the Site, any violation of Our Restrictions on Use of Website or Acceptable Use Policy as provided for in this Agreement shall subject You to liquidated damages of five thousand dollars ($5,000.00) for each and every violation. In the event that such violation causes any legal, emotional or physical harm to another person, You agree that You shall pay one hundred thousand dollars ($100,000.00) in liquidated damages.
126.96.36.199. In Our sole discretion, We may choose to provide You with a warning before assessing damages.
188.8.131.52. We may, in Our sole discretion, assign any such damage claim to a third party who has been wronged by Your conduct.
184.108.40.206. These liquidated damages are not a penalty, and they are an attempt by the parties to reasonably ascertain the amount of actual damage that could occur from such violations. Both parties hereby agree that these amounts are a minimum, and actual damages may be more.
7. STIPULATED LIQUIDATED DAMAGES
7.1. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
7.2. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of one hundred dollars ($100) per occurrence. You specifically agree to pay this one hundred dollars ($100) in liquidated damages.
7.3. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
8. DISCLAIMER OF WARRANTY
8.1. You expressly agree that use of the Site and Services, or any of the Materials contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded, uploaded or otherwise obtained or transmitted through the use of the Site and Services 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, viewing, streaming, upload, or transmission of such material and/or data.
8.3. We make no representations or warranties that the Site and Services, or any Materials contained therein, will be uninterrupted, timely, secure, or error free; nor do We make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site and Services or any of the Materials contained therein.
8.4. We make no guarantee that Your Content will be successfully delivered to Our Users whether or not such failure is due to circumstances within Our control or due to unauthorized access to alteration of any data transmission involving Your Content.
8.5. You understand that We cannot and do not guarantee or warrant that files available for downloading, viewing or streaming from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. We do not assume any responsibility or risk for Your use of the Internet.
8.6. We make no warranty regarding any goods or services purchased or obtained through the Site and/or Services or any transaction entered into through the Site and/or Services, and We are not responsible for any use of confidential or private information by sellers or third parties.
8.7. 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.
9. DISCLAIMER AND INDEMNIFICATION:
9.1. If We determine that You or any User has used Our Services in violation of any law, Your ability to use the Website may be terminated immediately and We have every right to voluntarily cooperate with law enforcement or private aggrieved parties that We may be legally compelled to do so. We 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 for Us should You violate any law.
9.2. You also agree to defend and indemnify Us should any third party be harmed by Your actions or should We be obligated to defend any claims including, without limitation, any criminal or civil action brought by any party.
9.3. Our Website contains material that may be considered offensive to third parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material and You agree to cease review of the Website should You find it offensive.
9.4. You agree to defend, indemnify, and hold harmless Our Website, its corporation, 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 Website or any of the Materials contained therein, or Your breach of any part of this Agreement. We 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 Our own expense, and choose Our own legal counsel; however, We are not obligated to do so.
9.5. The Site and Services are for Amusement Purposes
9.5.1. You understand and accept that Our Site and Services are to be used for entertainment and recreational purposes.
9.5.2. You hereby release Us and all other Users from any liability for invasion of privacy, defamation, false light, and related torts, in the event that Your Content is made public – even if it is made public for the sole purpose of amusing others at Your expense.
9.6. We do not pre-approve any of the Users who may be accessible via Our Site and Services. Furthermore, We do not pre-approve the User Generated Content supplied by Studio Members.
9.7. You hereby discharge, acquit, and otherwise specifically release Us, Our parent company, Our agents, employees, officers, directors, shareholders, attorneys, and affiliates, from any and all allegations, counts, charges, debts, causes of action, and claims relating in any way to the use of, or activities relating to the use of, the Site and Services including, but not limited to claims relating to the following:
9.7.1. Assault, Battery, Sexual Assault, Sexual Harassment, Negligence, Gross Negligence, Reckless Conduct, Alienation of Affections (to the extent recognized in any jurisdiction), Intentional Infliction of Emotional Distress, Intentional Interference with Contract or Advantageous Business Relationship, Defamation, Violation of Publicity or Privacy Rights, Revenge Porn, False Light Claims, Intellectual Property, Misrepresentation or any claim based on vicarious liability for torts or other wrongful acts committed by individuals met on or through the Site and Services, including but not limited to fraud, financial crimes, assault, battery, stalking, rape, theft, cheating, perjury, manslaughter, or murder.
9.7.2. The above list is intended to be illustrative only, and not exhaustive of the types or categories of claims released by You. This release is intended by the parties to be interpreted broadly in favor of Us, and thus any ambiguity shall be interpreted in a manner providing release of the broadest claims. This release is intended to be a full release of claims, and the parties acknowledge the legally binding nature of this provision, and the nature of the rights given up in connection therewith. Nothing contained in this section is intended to limit the scope of releases and / or indemnification contained elsewhere in this Agreement.
10. INTELLECTUAL PROPERTY INFORMATION:
10.1. TRADEMARK – The above referenced website names constitute Our service mark(s) and/or trademark(s). Any word, slogan or brand appearing on Our Site with a TM designation qualifies as Our trademark or service mark.
10.2. Other companies’ product and service names referenced on Our Site 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.
10.3. COPYRIGHT – This Website belongs to Us, and We either own or have rights to display all of the Materials thereupon. You may not use any of the Materials without Our express written consent.
10.4. We aggressively enforce Our intellectual property rights. Any infringement will be prosecuted to the fullest extent of the law. This site has adopted a firm policy relating to the termination of repeat infringers. A copy of the policy is available to Customers, Customer Members and Studio Members upon written request.
10.5 You understand and consent that We may act on Your behalf in connection with all instances of enforcement of Your copyrights in Your Content (as this term is hereinafter defined). It is understood that We shall, under no circumstance, have the obligation to act on Your behalf in connection with such enforcement and that We may exercise this authority granted by You at Our own discretion. Such protection of Content may be done by sending a DMCA takedown notice on Your behalf to potential infringers, such as third-party websites. You also consent to the fingerprinting of Your Content to prevent its unauthorized uploading to any website or online platform and to remove Your Content from such platforms. You furthermore understand and consent that the authorizations granted under this Section 10.5 shall extend and also be granted to any third party We may appoint to protect, take action or pursue enforcement in relation to the Content. In no event shall We (or any appointed third party) be liable to You, or any other third party for any claims, including without limitation, damages for loss of profits, revenue, or goodwill, which may arise from any exercise of the rights found under this Section 10.5. For the purposes of this Section 10.5, “Content” shall mean any text, images, data, audio, video or other information and content (whether pre-recorded or live) You provide on or through this Website or through Our Services.
11. LIMITATION OF LIABILITY:
11.1. In no event shall We (or Our 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 Website, Services or any of the Materials, including User Generated Content, contained therein, even if We have 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 We have been advised of the possibility of such damages.
11.2. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed ten dollars ($10.00.) Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
12. DEFAMATION & INVASIVE MATERIAL POLICY:
12.1. We provide an interactive computer service, and thus We have no liability for third-party content due to Section 230 of the CDA. Nevertheless, We recognize that despite this protection, there may occasionally be content posted by Our Users that is unappreciated by the subject of the User-posted content. It is not Our intention to cause anguish to any person nor harm to any entity, nor to allow through inaction such harm to occur. Accordingly, it is Our policy to respond respectfully to any complaints about User-posted content, or about content that We might have provided.
12.2. If You feel damaged by any User-posted content, or content provided by Us, We will, in Our discretion, take reasonable measures to comply with any reasonable requests, as set forth in Paragraphs 12.3-12.8 of this Agreement:
12.3. You agree that if You have any complaint about any content on Our Website, including (but not limited to) a complaint or claim of defamation (libel or slander), invasion of privacy, false light, trademark infringement, right of publicity claims, or any related or similar tort (from which We are otherwise immune from liability), that You will provide notice to Us by mail or fax to:
Ralph G Peters, Esq.
Peters Law Group
195 E. Oak Ave.
12.4. You agree that We shall have ten (10) business days after RECEIPT of said notice to evaluate Your concerns.
12.5. After evaluating Your concerns, We will either inform You that We do not believe Your concern is valid, or We will request Your preference regarding an opportunity to cure Your concerns. This cure may, in Our discretion, include one of the following:
12.5.1. We may offer to delete the offending material.
12.5.2. We may offer to modify the offending material.
12.5.3. We may offer You the opportunity to publish a rebuttal to the offending material.
12.5.4. We may engage You and seek any other alternative resolution that will mitigate Your damaged legal interests – whether or not We are legally required to do so.
12.5.5. We may provide You with some or all identifying information We may have about the actual culprit (if the content was User-posted), but We are under no obligation to do so, and expressly reserve the right not to.
12.6. You acknowledge and agree that upon transmission of Your complaint to Us, You will be considered to have engaged in settlement discussions with Us, and neither party will initiate formal legal action while non-adversarial resolution is in progress. You agree that You will not file suit unless and until We issue a statement to You that We have taken Our final action, and that no further action will be taken without adversarial proceedings. At that point, You may proceed with arbitration as provided for under this Agreement.
12.7. You acknowledge that once You accept any of Our offers of non-adversarial resolution, that You irrevocably waive any and all possible claims for any allegedly offending material on Our Website and that if You do bring any action against Us that You hereby stipulate that You will bear Your own costs and fees incurred in the action, regardless of the outcome of that action, and that You stipulate that Your damages will be limited to one dollar ($1), and no more, and that You hereby acknowledge that such amount of one dollar ($1) is sufficient and adequate.
12.8. You understand that no part of this Agreement obligates Us to go beyond that required by law, and this Agreement is in place for Your convenience. If We believe that Your requests are unreasonable, We reserve every right to terminate discussions with or file suit against You to recover any legal fees incurred due to harassing or unreasonable requests. Nothing contained in this section shall obligate Us to undertake any specific action with regard to a given complaint, and We reserve all rights relating to resolution of disputes of this nature.
13. LINKS AND LINKING:
13.1. Some websites which are linked to the Website are owned and operated by third parties. Because We have no control over such websites and resources, You acknowledge and agree that We are not responsible or liable for the availability of such external websites or resources, and do not screen or endorse them, and are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
13.2. You further acknowledge and agree that We 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.
13.3. 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 Website’s User Agreement or other online contracts, which are incorporated into this Agreement by reference.
13.4. Links to external websites (including external websites that are framed by the Website) or inclusions of advertisements do not constitute an endorsement by Us of such websites or the content, products, advertising, or other materials presented on such website, but are for User’s convenience.
13.5. All Users do hereby agree to hold Us harmless from any and all damages and liability that may result from the use of links that may appear on the Website. We reserve the right to terminate any link or linking program at any time.
14. EXPORT CONTROL:
14.1. 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.
14.2. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
14.3. 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.
14.4. 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.
15. NO AGENCY RELATIONSHIP:
15.1. 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.
16.1. Notice – Any notice required to be given under this Agreement by Us to You, may be provided by email to a functioning email address of the party to be noticed, by general posting on the Site, or personal delivery by commercial carrier such as Federal Express. Notices by Customers or Customer Members to Us shall be given by electronic messages unless otherwise specified in the Agreement.
16.2. 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.
16.3. 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.
16.4. 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.
17. COMMUNICATIONS NOT PRIVATE:
Unless otherwise designated by Us as private, all communications occurring on or through the Site are public and available to other Users. All messages transmitted to Us 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. All Materials uploaded to the Site may be viewed by individuals who may recognize You, in real life. Use common sense when uploading Materials to the Site.
18. FORCE MAJEURE:
We 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; pandemics, 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; data breach, hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s performance.
19. GENERAL PROVISIONS:
19.1. Governing Law. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation permitted under this Agreement must be, without exception, brought to court and litigated in Orange County, Florida.
19.1.1. All parties to this Agreement agree that all litigation permitted under this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.
19.1.2. The parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.
19.1.3. The parties agree to exclusive venue in, and only in, Orange County, Florida.
19.1.4. The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.
19.1.5. All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any litigation permitted under this Agreement.
19.1.6. All parties stipulate that the state and federal courts located in Orange County, Florida shall have personal jurisdiction over them for the purpose of any litigation permitted under this Agreement that is not otherwise subject to the arbitration provisions, infra.
19.1.7. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
19.1.8. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
19.1.9. Right 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 in any litigation permitted under this Agreement, an aggrieved party shall therefore be entitled to seek injunctive relief, in addition to seeking all other remedies available at law or in equity.
19.2. 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 must 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 by Us under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other injunctive or equitable relief. The arbitration shall be conducted in Orange County, Florida, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes.
19.2.1. 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 this User Agreement; 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.
19.2.2. No waiver of right to arbitration — There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
19.2.3. The First Amendment applies to arbitration proceedings — Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
19.3. 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.
19.4. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
19.5. Attorneys’ Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of 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 attorneys’ fees and costs incurred in connection therewith, including attorneys’ fees incurred on appeal.
19.6. Complaints – California Residents: The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: https://www.dca.ca.gov/consumers/complaints/index.shtml.
19.7. No Waiver. No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. 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 this Agreement.
19.8. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
19.9. Complete Agreement. This Agreement constitutes the entire Agreement between the parties with respect to Your access and use of the Website and the Materials contained therein, and Your Membership with the Website, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
19.10. Other Jurisdictions. We make no representation that the Website 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 Website from such locations do so on their own initiative and are solely responsible for determining compliance with all applicable local laws.
This document prepared by: Peters Law Group, All Rights Reserved. © (2019).