- Preliminary Provisions
1.1. Introduction. Welcome to Our Website's Agreement (hereinafter “Terms and Conditions" or "Agreement"). The provisions of this Agreement will govern Your use of Our Website(s) and all affiliated Websites and other services, and You should therefore take some time to read it carefully. 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.
1.2. We are placing legal conditions on Your use of this website.
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 the service provider of the above referenced website(s) (hereinafter collectively referred to as "Website" or "Site") and related services, ("Services"). 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, Customers and Users. This Agreement applies to all Visitors, Customers and Users. You become a User by accessing this site in any way, and a "User” refers to Visitors and Customers. A "Visitor" is someone who merely views Our Site without purchasing or services. A "Customer" is someone who purchases through our site.
1.7. Consideration. Consideration for Your knowing agreement to all of the provisions in this Agreement has been provided to You by allowing you to use our Website and Our Services. You agree that such Consideration is adequate, and that it is received upon your viewing, accessing or downloading any portion of Our Website or by participation as a Caller or a Talker.
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://noveltyemails.com/terms 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 again review the Agreement in its entirety and that you will agree to its terms or immediately cease use of the Website. Your continued Use of the Website, 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.
- 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 all 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 shall be interpreted as a waiver of the requirement that you assent to this Agreement, in its entirety. 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 ($ 250.00) dollars 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. BY CLICKING THE BUTTON TO CONTINUE ON THE REGISTRATION PAGE, BY USING THE SITE AND ANY OF OUR SERVICES, INCLUDING ANY CONTENT PROVIDED THEREIN, BY INITIATING ANY FORM OF COMMUNICATION WITH A USER OR BY POSTING ANY DATA ON THE SITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT IN THE SAME WAY YOU WOULD BE BOUND HAD YOU SIGNED A PAPER 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, 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.IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR ANY OF OUR SERVICES.
2.3. If You are seeking information regarding any illegal 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.
- Subject Matter
3.1 We are a provider of email services (email addresses and email storage). Details on the service can be found here https://noveltyemails.com )
3.2 You agree that this agreement applies to all contractual agreements between Us and the User, including the registration and use of our Website without the conclusion of any agreements subject to payments, which has to be accepted in the course of the registration or order process.
- Access and User Status
4.1. 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 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 must 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.
4.2. You must promptly inform Us of all changes, including, but not limited to, changes in your address and changes in Your credit card used in connection with billing and/or payment 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, in our sole discretion 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 ($100) dollars in additional liquidated damages for each fee incurred.
4.3. User Names. Upon Your registration as a customer 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 person (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 inappropriate, vulgar or otherwise offensive. We reserve the right to delete any user name, or to require deletion thereof.
4.4. Account Responsibility. User 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 User's password or accounts, as well as any other breach of security. User 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.
4.5. Subject to Your supervision and assumption of all resulting liabilities, you may specify any third party User Names who will have the right to access and administer Your Account on Your behalf. With the sole exception of the designated User Names associated with Your Account, You shall not share Your password, or allow third parties to use or access Your Account, as any such access is unauthorized for the purposes of this Agreement. User 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 Account, this includes any activities occurring with or without Your knowledge by User Names associated with Your Account; (b) maintaining the confidentiality of your password(s) and Account(s) and ensuring that any User Names associated with Your Account do the same; (c) disclosing to Us a complete and current listing of those User Names who are authorized to access your Account on Your behalf; (d) notifying Us immediately of any unauthorized use of Your password or 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 Account comply with the terms of this Agreement..
4.6. Unless We specifically agree otherwise in writing, you will not allow, and will use commercially reasonable efforts to make sure a third party does not: (a) access or copy Your Content or Your Account through any automated technology or other unauthorized means, including without limitation, "robots," "spiders," or other devices that send 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 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 Account.
4.7. You agree that neither Us nor any third-party acting on Our behalf shall be liable to You for any termination of Your Usership or access to the Site or Services. You agree that if Your Account is terminated by Us, You will not attempt to re-register as a User - using the same or different username - without prior written consent from Us. Active Users may not knowingly allow former Users who have been terminated to use the active Users' Account(s).
4.8. Terminating Your Account. Either You or We may terminate Your 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) amount or type of fees or billing methods, or change therein, is to terminate Your User Account with Us by notifying Our User Support of Your desire to terminate by emailing: firstname.lastname@example.org. Your notice of termination will be effective upon receipt by Us, or upon receipt of confirmation if confirmation is requested.
4.9. Customers. 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 anytime, with or without prior notice. In connection with completing the purchase of any content provided by our Users, You agree to provide true, accurate, current and complete information about Yourself as prompted by the purchase form (such information being the "Purchase Data"); and
4.10. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and changes in 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 ($100) dollars in additional liquidated damages for each fee incurred.
4.11. You agree that neither Us nor any third-party acting on Our behalf shall be liable to You for Your disqualification from future sales 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.
4.12. 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 systems properly, for our protection and the protection of our users and users.
- Special Considerations Regarding Minors
5.1. 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.
5.2. 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.
5.3. 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 prevent your children's access to any inappropriate content.
- 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; or
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 communicate with others using the email provided by Us to send and receive emails. However, You expressly warrant and represent that Your Use does not contain any of the unacceptable attributes below. Although the Site undertakes no obligation to monitor user content or communication, You expressly agree that you:
220.127.116.11. are solely responsible for the content of your communications;
18.104.22.168. will not violate any law in your use of our forum or our Services;
22.214.171.124. will not engage in any fraudulent or deceptive practice;
126.96.36.199. will not record any voice or video communication with other users;
188.8.131.52. will not violate the terms of this Agreement;
184.108.40.206. will cooperate with all requests from Us for information;
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 any content that is, in Our discretion, defamatory, obscene, harassing, illegal, involves underage participants, or is otherwise objectionable;
18.104.22.168. 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;
22.214.171.124. will not post content that might be considered to be impersonating another person or legal entity;
126.96.36.199. will conduct all communication with our users through our Site and our facilities;
188.8.131.52. will not solicit the sale or exchange of securities nor will you provide investment advice as it pertains to marketable securities;
184.108.40.206. will not post any personally-identifying information about another person without that person's prior explicit consent;
220.127.116.11. will not post personally-identifying content about yourself, other than information provided during the registration process,
18.104.22.168. will not post content that constitutes SPAM or bulk posting of commercial advertisements for commercial interests;
22.214.171.124. will not post content that is stolen or otherwise infringes upon any trademark, copyright, or other intellectual property rights of any party;
126.96.36.199. 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.
188.8.131.52. will immediately cease and desist from any contact with any person who so requests such cessation;
184.108.40.206. will not use Our Services to "stalk" or otherwise harass any other person;
220.127.116.11. will not use Our Services 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;
18.104.22.168. will not use Our Services to promote, enable, or conduct any illegal activities;
22.214.171.124. will not use Our Services to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way;
126.96.36.199. will not use Our Services 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.
188.8.131.52. You agree not to register and/or use any preferred names/aliases, as part of any email addresses, which contain discriminatory, racist, sexist, offensive or defamatory elements or elements which glorify violence or otherwise violate good morals. In addition, the desired names/aliases may not violate any third-party rights (e.g. moral rights, name rights, trade mark rights). The namelalias may not contain terms which are typically used as email addresses for internet sites (e.g. support@, service@, info@, etc.). We reserve the right to reject individual names/aliases and to request that the user chooses a different namelalias.
184.108.40.206. You agree not to send any content which violates statutory provisions, goodmorals and/or third-party rights via email accounts provided by Us. In particular, the User is prohibited from sending content which is discriminatory, racist, sexist, offensive or defamatory or which glorifies violence. Similarly, the User is prohibited from using the email accounts provided by us to illegally harass others.
- 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 the greater of liquidated damages of One Hundred ($100) Dollars per occurrence or the actual damages suffered.
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 address your misconduct or 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.
- 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, upload, or transmission of such material and/or data.
8.2. The Site and Services, 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.
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 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.
- Disclaimer and Indemnifications
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.
9.6. You understand and accept that Our Site and Services are to be used for entertainment and recreational purposes.
9.7. 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.
9.8. 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 Users.
9.9. 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:
9.10. 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, 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.
9.11. 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 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.
- Intellectual Property Information
10.1. The above referenced website names constitute service mark(s) and/or trademark(s). Any word, slogan, or brand appearing on Our Site with a need info 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 upon request.
10.5. You have no right title and or interest in any Our Site.
- 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 ($10.00) Dollars. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
- EXPORT CONTROL
12.1. 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.
12.2. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
12.3. 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.
12.4. 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.
- NO AGENCY RELATIONSHIP
13.1. 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.
14.1. Notice. Any notice required to be given under this Agreement by Us to You, may be provided by email sent to the email address you have supplied, by general posting on the Site, or personal delivery by commercial carrier such as Federal Express. Notices by customers to Us shall be given by electronic messages unless otherwise specified in the Agreement.
14.2. 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.
14.3. When Notice is Effective. Electronic Notices shall be deemed effective Forty Eight (48) hours after transmittal. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the first business day following mailing.
14.4. 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 Forty Eight (48) hours after transmittal. 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.
14.5. 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.
- 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; 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, for so long as such event continues to delay the Site's performance.
- General Provisions
16.1. 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 Pennsylvania, 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 Philadelphia County, Pennsylvania.
16.2. 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 Philadelphia County, Pennsylvania.
16.3. The parties agree to exclusive jurisdiction in, and only in, Philadelphia County, Pennsylvania.
16.4. The parties agree to exclusive venue in, and only in, Philadelphia County, Pennsylvania.
16.5. 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.
16.6. 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.
16.7. All parties stipulate that the state and federal courts located in Philadelphia County, Pennsylvania 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.
16.8. 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.
16.9. 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.
16.10. 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.
16.11. 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 Seminole County, Pennsylvania, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes.
16.12. 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 ARBITRABLE CLAIMS.
16.13. 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.
16.14. 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.
16.15. 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.
16.16. 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.
16.17. 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, if We prevail in any such action or proceeding You shall pay, in addition to all other available relief, Our reasonable attorneys' fees and costs incurred in connection therewith, including attorneys' fees incurred on appeal. If you prevail, we shall not be liable for any of Your attorney's fees.
16.18. Complaints - California Residents. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Commerce contacted at: http://www.dca.ca.gov/online services/complaints/consumer complaint.shtml.
16.19. 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.
16.20. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
16.21. 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 Usership with the Website, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
16.22. 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.
- Users may not upload, post or otherwise transmit any photo which is unlawful, harmful, threatening, harassing, tortuous, defamatory, infringing, vulgar, obscene, hateful, racially, or ethnically objectionable or invasive of another's privacy, and
- Users may not upload or post unauthorized advertising or promotional materials, or any other photo which they do not have the right to transmit under any law or contractual or fiduciary relationship. This includes any content that infringes any patent, trademark, trade secret, copyright or any other proprietary rights of any party, or material protected by intellectual property laws, right of privacy or publicity or any other applicable law, unless having all necessary contracts or consents.