WEBSITE USER AND MEMBERSHIP
TERMS AND CONDITIONS
02/19/2008 - Last Modified:
These Website User and Membership Terms and Conditions govern your use and
access to and/or membership in, www.Southern-Charms.com,
and any of its sub-sites operated as independent membership sites. (hereinafter all sites
are collectively referred to as the SITE or we/our).
B. IMPORTANT! These Terms and Conditions also govern your
membership to the SITE if you become a member. By
accessing, using, viewing, reading, printing, installing, or downloading any material from
the SITE, or becoming a member to the SITE, you agree to be bound by these Terms and
Agreement is intended to be governed by the Electronic Signatures in Global and National
Commerce Act (E-Sign Act). You manifest your
agreement to these Terms and Conditions by any act demonstrating your assent thereto,
including clicking any button containing the words I agree or similar syntax
or merely accessing the SITE, whether you have read these Terms and Conditions or not. You may
submit a paper copy of this transaction and print this form for your personal records. You
have the right to withdraw your consent to use the E-Sign Act by emailing us. Your consent
to use the E-Sign Act is limited to providing the information on this form. Access to this
electronic record requires a simple browser program such as Internet Explorer,TM Netscape,TM
Opera, or Mozilla Firefox
and a computer.
C.Revisions to This Policy: SITE
reserves the right to revise, amend, or modify this policy and our other policies and
agreements at any time and in any manner. The user should periodically check this web page
for any modifications regarding these Terms and Conditions by re-visiting this web page
and using the refresh button on the users browser. The user should note the date of last revision to
this page, which appears at the top of this page. If
the last modified date remains unchanged, after the user has clicked the
refresh button on his/her browser, the user may presume that no changes have
been made since the last reading of the document. A
changed last modified dates indicates that this document has been updated or
edited, and the updated or edited version supersedes any prior versions immediately upon
D. If you do not
agree to be bound by these Terms and Conditions, you may not enter the SITE, you must exit
the SITE immediately, you may not use or access the SITE, and you may not print or
download any materials from them. You may use and access the SITE only in accordance with
these Terms and Conditions. Please consult
these Terms and Conditions regularly and read them carefully before using the SITE. You
affirm that you have read this Agreement and understand, agree and consent to its Terms
You are solely responsible for obtaining access to the SITE and that access may
involve third party fees (such as Internet service provider or airtime charges). You are
responsible for those fees, including those fees associated with the display or delivery
of advertisements. In addition, you must provide and are responsible for all equipment
necessary to access the SITE.
II. IMAGES AND
Southern-Charms network of websites contains images and content, including but
not limited to text, software, images, graphics, data, messages, or any other information,
and any other World Wide Web Site owned, operated, licensed, or controlled by SITE
All Materials displayed on the SITE are protected by the First Amendment rights
to Free Speech, Free Expression, and Freedom of the Press, and parallel provisions of
other constitutional provisions and state constitutions.
You acknowledge that the SITE may offer content that could be deemed
adult or erotic in nature. Additionally,
you are on notice that some of the Materials presented on the SITE may contain graphic
visual depictions, graphic audio, and descriptions of sexually oriented, explicit,
offending, or disturbing activities. You acknowledge that you are aware of the nature of
the Materials provided by the SITE, that you are not offended by such Materials, and that
you access the SITE freely, voluntarily, and willingly. You also acknowledge that this
SITE is intended to contain only images protected by the First Amendment to the United
If you are seeking information regarding illegal activities, please leave this
SITE immediately. You are further aware of the community standards of your community, and
you will only access the content on the SITE if you believe, upon diligent investigation,
that the content on the SITE does not offend the community standards prevalent in your
You further agree not to use or access the SITE if doing so would violate the
laws of your state, province or country.
AGE OF MAJORITY AND MEMBERSHIP:
A. Age of Majority. You represent and warrant you are at least 18
or 21 years of age, depending on the age of majority in your jurisdiction, and that you
have the legal capacity to enter into this Agreement.
If you are not at least 18 or 21 years of age, depending on the age of majority in
your jurisdiction, you must exit the SITE immediately and may not use or access the SITE
or print or download any Materials from them. You
may be asked to verify your birth date on the Birth Date Verifier form as a
condition of entry onto the SITE, pursuant to 28 U.S.C. 1746. You agree not to bypass any security and/or access
feature on this SITE. Additionally, the SITE
does not assume any responsibility or liability for any misrepresentations regarding a
B. Membership. Your membership may not be assigned,
transferred, or sold to a third party. The SITE and its affiliates disclaim any and all
liability arising from fraudulent entry and use of the SITE. If a user fraudulently
obtains access, the SITE may terminate membership immediately and take all necessary and
appropriate actions under applicable federal, state, and international laws.
NO CHILD PORNOGRAPHY:
You understand that all models appearing on this SITE are, and
were at the time of all recorded images, at least 18 years of age, and that our SITE
contains no child pornography. If you seek any
form of child pornography (including so-called virtual child pornography), you
must exit this SITE immediately. You acknowledge that all Materials on the SITE are
protected by the First Amendment. We take a
strong and definite stand against child pornography and only allow images and Materials
that are protected by the First Amendment. If
you identify any images, real or simulated, depicting minors engaged in sexual activity
within the SITE, you are required to report the images to the SITE. Include with your report any appropriate evidence,
including the date and time of identification. All reports will immediately be
investigated and the appropriate action will be taken. We enthusiastically cooperate with
any law-enforcement agency investigating child pornography.
If you suspect other outside websites are participating in unlawful activities
involving minors, please report them to www.asacp.org. Users should implement parental control
protections, such as computer hardware, software, or filtering services, which may help
users to limit minors access to harmful material.
ACCESS TO, LIMITED LICENSE, AND INTERFERENCE WITH, SITE:
A. Access. To access the SITE or some of the resources it
has to offer, you may be asked to provide certain registration details or other
information. It is a condition of your use of
this SITE that all information you provide will be correct, current, and complete. If the SITE believes the information you provide is
not correct, current, or complete, the SITE has the right to refuse you access to the SITE
or any of its resources, and to terminate or suspend your access at any time.
License. Subject to these Terms and
Conditions and in consideration of using the SITE, the SITE hereby grants you a limited,
nonexclusive, nontransferable personal license to access and use the SITE and the
Materials contained therein. The SITE provides the Materials on this SITE for the
personal, non-commercial use by viewers, fans, visitors, subscribers and/or potential
subscribers of said SITE. Users of this SITE are granted a single copy license to view
Materials (on a single computer only). All Materials on the SITE shall be for private
non-commercial use only, and all other uses are strictly prohibited. SITE reserves the
right to limit the amount of materials viewed. You agree to prevent any unauthorized
copying of the SITE, or any of the Materials contained therein. Any unauthorized use of
the SITE or any of the Materials contained therein terminates this limited license
effective immediately. This is a license to use and access the SITE for its intended
purpose and is not a transfer of title. You
represent and warrant that you will not allow any minor access to this SITE and that you
will not copy or redistribute any of the content appearing on this SITE. SITE reserves the right to terminate this license
at any time if you breach or violate any provision of this Agreement, in which case you
will be obligated to immediately destroy any information or materials you have downloaded,
printed or otherwise copied from this SITE. Violators
of this limited license may be prosecuted to the fullest extent under the applicable law.
C. Interference. Except where expressly permitted by law, you
may not translate, reverse-engineer, decompile, disassemble, or make derivative works from
our SITEs Materials. User hereby agrees not to use any automatic device or manual
process to monitor or reproduce the SITE, and will not use any device, software, computer
code, or virus to interfere or attempt to disrupt or damage the SITE or any communications
RESTRICTIONS ON USE OF SITE:
You may use the SITE only for purposes expressly permitted by the Terms and
Conditions of the SITE. You may not use the
SITE for any other purpose, including any commercial purpose, without the SITEs
express prior written consent.
Without the express prior written authorization of the SITE, you may not:
1. Duplicate the
SITE or any of the Materials contained therein (except as expressly provided elsewhere in
derivative works based on the SITE or any of the Materials contained therein;
3. Use the SITE or
any of the Materials contained therein for any public display, public performance, sale or
the SITE or any of the Materials contained therein;
5. Remove any
copyright or other proprietary notices from the SITE or any of the Materials contained
6. Frame or utilize
any framing techniques in connection with the SITE or any of the Materials contained
7. Use any
meta-tags or any other hidden text using the SITES name or marks;
to any page of the SITE (including the homepage);
9. Circumvent any
encryption or other security tools used anywhere on the SITE (including the theft of user
names and passwords or using another persons user name and password in order to gain
access to a restricted area of the SITE);
10. Use any data mining, bots,
or similar data gathering and extraction tools on the SITE;
11. Decompile, reverse engineer,
modify or disassemble any of the software aspect of the Materials except and only to the
extent permitted by applicable law;
12. Sell, rent, lease, license,
sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or
otherwise assign to any third party the Materials or any of your rights to access and use
the Materials as granted in Paragraph IV above; or
13. Bookmark any page of the
SITE beyond the registration log-in screen.
14. Mass download
more than 1.5 Gig in any 24 hour period.
You agree to cooperate with the SITE in causing any unauthorized use to cease
immediately. At any time, if the SITE provides
a service enabling users to share information or communicate with other users, you hereby
agree not to publish, disseminate or submit any defamatory, offensive or illegal material
while using the SITE or other services included on the SITE. You are solely responsible for submitting any
material that violates any United States or International laws even if a claim arises after your service
is terminated, and, by doing so, your actions shall constitute a material breach of this
Agreement and the SITE shall terminate all your rights under this Agreement.
Registration. You may access the
non-public portion of the SITE only by being a member in good standing to the SITE. The SITE
reserves the right to modify Materials and the SITEs design at anytime, with or
without prior notice.
You may become
a member of the SITE by completing an online registration form, which must be accepted by
SITE, and you must pay the subscription fee. Upon
submission of the online registration form, SITE or its authorized agent will process the
application. In connection with completing the
online registration form, you agree to:
accurate, current and complete information about yourself as prompted by the registration
form (such information being the Registration Data) and
promptly update the Registration Data to keep it true, accurate, current and complete at
all times while you are a member. You must promptly inform SITE of all changes, including,
but not limited to, changes in your address used in connection with billing for the SITE.
provide any information that is untrue, inaccurate, not current or incomplete, or SITE or
any of its authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or
incomplete, SITE has the right to suspend or terminate your account and refuse any and all
current or future use of the SITE, as well as subjecting you to criminal and civil
You are responsible for any credit card chargebacks, dishonored checks, and any
related fees that we incur with respect to your account.
Practices such as registration, followed by use of the site, followed by
unsupported chargebacks are considered fraud. If
you engage in this kind of practice, or any other practice calculated to access the site
without paying for such access shall result in legal action against you to recover all
costs, expenses, losses and fees incurred or due.
Member Account, Password, and Security. As part of the registration process, you will select a unique
user name and password which you must provide in order to gain access to the non-public
portion of the SITE. You certify that when
asked to choose a username you will not choose a name which may falsely represent you as
somebody else or a name which may otherwise be in violation of the rights of a third
We reserve the right to disallow the use of usernames that we, at our sole
discretion, deem inappropriate. We reserve the
right to cancel at any time the membership of any member who uses their selected username
in violation of these Terms and Conditions or in any other way we, in our sole discretion,
Your membership, the ID and password are nontransferable and non-assignable.
You represent and warrant that you will not disclose to any other person your
unique user name and
password and that you will not provide access to the SITE to anyone who is below the age
of majority in your state, province, or country, or otherwise does not wish to view the
content on the SITE.
solely responsible for maintaining the confidentiality of your user name and password and
are fully responsible for all activities that occur under your user name and password. SITE will not release your password for security
additional password and account security, You agree to:
notify SITE of any unauthorized use of your user name and password or any other breach of
that you exit from your account at the end of each session.
You are liable and responsible for any unauthorized use of the SITE until you
notify SITE by email regarding that unauthorized use.
Unauthorized access to the SITE is illegal and a breach of this Agreement. You indemnify the SITE against all activities
conducted through your account. You may obtain
access to your billing records regarding charges of your use of the SITE upon request.
C. Membership Fees. Membership
fees to the SITE are prominently displayed prior to processing your subscription. You agree to pay all membership fees when due
according to these billing terms.SITE reserves
the right to contract with a third party to process all payments. Such third party may impose additional terms and
conditions governing payment processing. Your
account will be deemed past due if it is not paid in full by the payment due date. If your account becomes past due more than thirty
(30) days after the invoice date, you agree to pay interest on the past due amount at a
monthly rate of 1.5%, or the highest amount allowed by law, whichever is lower, compounded
daily, plus any additional collection costs, credits, charge backs and attorneys
fees. Your card issuer agreement may contain
additional terms with respect to your rights and liabilities as a card holder. You agree to pay all amounts due to us immediately
upon cancellation or termination of your account. We reserve the right to make changes to
our fees and billing methods, including the addition of supplemental charges for any
content or services provided by the SITE, with or without prior notice to you, at any
time. All memberships will automatically be renewed at the original rate unless the
membership is canceledprior to renewal. All membership cancellations must be done
from our web site at least 24 hours prior to membership renewal. Unlike many web sites,
Southern Charms will make every effort to process cancellations requested less then 24
hours prior to renewal but cannot guarantee cancellation with such short notice. You may
also call 1-800-893-8871 to cancel your membership. Members may cancel themselves at any
time after signing up by going here . This site uses an automatic rebill
cycle according to the users selected payment.
Billing Errors. If you believe that
you have been erroneously billed, please notify us immediately of such error. If we do not hear from you within thirty (30) days
after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of
inquiries made by your credit card issuer. You release us from all liabilities and claims
of loss resulting from any error or discrepancy that is not reported to us within thirty
(30) days of its publication.
cancel your membership at any time by following the
procedures in Article VII C of this Agreement:
Our customer service department with a notice of your intent to cancel the membership along with your user
name and password; and,
outstanding fees owed for your membership.
encouraged to explore the free areas of the SITE before committing to purchase of a
membership. Once you purchase a membership to
view any of the individual models sites, you hereby agree to be personally liable
for any and all charges incurred by you until termination of membership for goods or
services through your use of the SITE. This Agreements provisions shall survive its
termination, unless otherwise stated. Upon our processing of your request to cancel your
membership, you will no longer have access to the non-public areas of the SITE to which
you were a member.
limiting other remedies, the SITE may immediately issue a warning, temporarily suspend,
indefinitely suspend, or terminate your access and use of the SITE and refuse to provide
our services to you at any time, with or without advance notice, if:
believes that you have breached any material term of these Terms and Conditions or the
documents it incorporates by reference;
You fail to
pay any amount due by the payment due date;
3. We are
unable to verify or authenticate any information you provide to us;
believe that your actions may cause legal liability for you, our users or us; or
decides to cease operations or to otherwise discontinue any of the SITE or parts thereof.
agree that neither SITE nor any third party acting on our behalf shall be liable to you for any termination of your
membership or access to the SITE. You agree
that if your account is terminated by SITE, you will not attempt to re-register as a
member without prior written consent from SITE.
DISCLAIMER OF WARRANTY:
You expressly agree that use of the SITE or any of the materials contained therein
is at your own and sole risk.
The SITE and all materials contained therein are provided as is without
warranty of any kind, either express or implied, including but not limited to, any implied
warranties of merchantability, fitness for a particular purpose, title, or
SITE makes no representations or warranties that the SITE or any materials
contained therein will be uninterrupted, timely, secure, or error free; nor does SITE make
any representations or warranties as to the quality, suitability, truth, usefulness,
accuracy or completeness of the SITE or any of the materials contained therein.
You also understand and agree that any material and/or data downloaded or otherwise
obtained through the use of the SITE or any of the materials contained therein is done at
your own discretion and risk and that you will be solely responsible for any damage to
your computer system or loss of data that results from the download of such material
You understand that SITE cannot and does not guarantee or warrant that files
available for downloading from the internet will be free of viruses, worms, Trojan horses
or other code that may manifest contaminating or destructive properties. SITE does not
assume any responsibility or risk for your use of the internet.
SITE makes no warranty regarding any goods or services purchased or obtained
through the SITE or any transaction entered into through the SITE and
is not responsible for any use of confidential or private information by sellers or third
G. SITE owner may
change any of the information found at this SITE at any time without notice including the
terms of service without notice. SITE owner makes no commitment to update the information
found at this SITE. SITE makes no commitment to update the materials.
H. The warranties
and representations set forth in this agreement are the only warranties and
representations with respect to this agreement, and are in lieu of any and all other
warranties, written or oral, express or implied, that may arise either by agreement
between the parties or by operation of law, including warranties of merchantability and
fitness for a particular purpose. None of
these warranties and representations will extend to any third person. Some jurisdictions do not allow the
exclusion of certain warranties, so some of the above exclusions may not apply to you.
The provision of any services which is in violation of any laws is strictly
prohibited. If we determine that you or any user has provided or intends to purchase or
provide any services in violation of any law, your ability to use the SITE will be
terminated immediately. We do hereby disclaim any liability for damages that may arise
from any user providing any services for any purpose that violates any law. You do hereby
agree to defend, indemnify and hold us harmless from any liability that may arise should
you violate any law.
Our SITE contains material that may be offensive to third parties. You do
hereby agree to indemnify and hold us harmless from any liability that may arise from
reviewing such material and warrant and agree to cease review of the SITE should you find
If you are seeking services that are in violation of any applicable laws
whatsoever, you may not use this SITE and do hereby agree to exit it immediately. Thus, all disputes relating to the online store
shall be directed to the store, and not the SITE.
LIMITATION OF LIABILITY:
In no event shall SITE (or its licensors, agents, suppliers, resellers, service
providers, or any other subscribers or suppliers) be liable to you, or any other third
party for any direct, special, indirect, incidental, consequential, exemplary, or punitive
damages, including without limitation, damages for loss of profits, loss of information,
business interruption, revenue, or goodwill, which may arise from any persons use,
misuse, or inability to use the SITE or any of the materials contained therein, even if
SITE has been advised of the probability of such damages. This is for any matter arising
out of or relating to this agreement, whether such liability is asserted on the basis of
contract, tort or otherwise, even if SITE has been advised of the possibility of such
In no event shall SITES maximum total aggregate liability hereunder for
direct damages exceed the total fees actually paid by you for use of a SITE or SITE for a
period of no more than one (1) month from the accrual of the applicable cause or causes of
action. Because some jurisdictions prohibit
the exclusion or limitation of liability for consequential or incidental damages, the
above limitation may not apply to you.
You agree to defend, indemnify, and
hold harmless the SITE, its officers, directors, shareholders, employees, independent
contractors, telecommunication providers, and agents, from and against any and all claims,
actions, loss, liabilities, expenses, costs, or demands, including without limitation
legal and accounting fees, for all damages directly, indirectly, and/or consequentially
resulting or allegedly resulting from your, or you under another persons authority
including without limitation to governmental agencies, use, misuse, or inability to use
the SITE or any of the Materials contained therein, or your breach of any of these Terms
and Conditions. SITE shall promptly notify you
by electronic mail of any such claim or suit, and cooperate fully (at your expense) in the
defense of such claim or suit. We reserve the right to participate in the defense of such
claim or defense at its own expense, and choose its own legal counsel, but are not
obligated to do so.
You do also hereby agree to defend and indemnify us should any
third party be harmed by your illegal actions or should we be obligated to defend any
claims including, without limitation, any criminal action brought by any party not
affiliated with this SITE.
LINKS AND LINKING:
which are linked to the SITE are owned and operated by third parties. Because the SITE has
no control over such websites and resources, you acknowledge and agree that SITE is not
responsible or liable for the availability of such external websites or resources, and
does not screen or endorse them, and is not responsible or liable for any content,
advertising, services, products, or other materials on or available from such websites or
acknowledge and agree that SITE shall not be
responsible or liable, directly or indirectly, for any damage or loss caused or alleged to
be caused by or in connection with use of or reliance on any such third-party content,
goods or services available on or through any such website or resource. If you decide to access any such third party
website, you do so entirely at your own risk and subject to any terms and conditions and
privacy policies posted therein.
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 SITEs Terms and Conditions, Spam Policy, Webmaster Agreement, or Privacy
Policy, which are incorporated by reference.
Links to external websites (including external websites that are framed by the
Site) or inclusions of advertisements do not constitute an endorsement by the SITE of such
websites or the content, products, advertising or other materials presented on such SITE,
but are for user's convenience.
Users access them at their own risk. The SITE expressly disclaims any liability
for any damages whatsoever incurred by any user in connection with the use of any website,
the access to which was found through this SITE. The SITE expressly disclaims any
liability derived from the use and/or viewing of any links that may appear on this SITE.
All users do hereby agree to hold the SITE harmless from any and all damages
and liability that may result from the use of links that may appear on the SITE. The SITE
reserves the right to terminate any link or linking program at anytime.
A. This SITE
and the aforementioned names of the SITES are service marks and/or trademarks of the SITE.
The terms Southern Charms, Southern-Charms.com and Photo
Exchange, BBS, Inc. are considered trademarks of the SITE. We aggressively defend our intellectual property
manufacturers product and service names referenced herein may be trademarks and
service marks of their respective companies and are the exclusive property of such
respective owners, and may not be used publicly without the express written consent of the
owners and/or holders of such trademarks and service marks.
SITEs marks, logos, domains, and trademarks may not be used publicly except with
express written permission from SITE, and may not be used in any manner that is likely to
cause confusion among consumers, or in any manner that disparages or discredits SITE.
accessible from the SITE, and any other World Wide Web Site owned, operated, licensed, or
controlled by SITE, is the proprietary information and valuable intellectual property of
SITE or the party that provided the Materials to SITE, and SITE or the party that provided
the Materials to SITE retains all right, title, and interest in the Materials. The SITE
and its software are registered with the U.S. Copyright Office.
may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in
any way without the prior written consent of SITE, except that you may print out a copy of
the Materials solely for your personal use. In
doing so, you may not remove or alter, or cause to be removed or altered, any copyright,
trademark, trade name, service mark, or any other proprietary notice or legend appearing
on any of the Materials.
or use of the Content except as expressly provided in these Terms and Conditions violates
the SITEs intellectual property rights.
nor intellectual property rights are transferred to you by access to the SITE.
included on the SITE, such as text, graphics, photographs, video and audio clips, music,
soundtracks, button icons, streaming data, animation, images, downloadable materials, data
compilations and software is the property of the SITE or its content suppliers and is
protected by United States and international copyright laws. The compilation of all
Materials on the SITE is the exclusive property of the SITE or its content suppliers and
protected by United States and international copyright laws, as
well as other laws and regulations. (C) Photo Exchange, BBS, Inc. (2004-2005), all rights reserved.
Notice of Claimed Infringement
The SITE respects the intellectual
property of others, and we ask our users to do the same. We voluntarily observe and comply
with the United States Digital Millennium Copyright
Act. If you believe that your work has been
copied in a way that constitutes copyright infringement, or your intellectual property
rights have been otherwise violated, please provide SITEs Designated Copyright Agent
the following information:
A. An electronic
or physical signature of the person authorized to act on behalf of the owner of the
copyright or other intellectual property interest;
of the copyrighted work or other intellectual property that you claim has been infringed;
of where the material that you claim is infringing is located on a SITE;
D. Your address,
telephone number, and email address;
statement by you that you have a good faith belief that the disputed use is not authorized
by the copyright owner, its agent, or the law; and
by you, made under penalty of perjury, that the above information in your Notice is
accurate and that you are the copyright or intellectual property owner or authorized to
act on the copyright or intellectual property owners behalf.
You may send
your Notice of Claimed Infringement to:
G. Walters, Esquire
Weston, Garrou, DeWitt & Walters
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 389-4529
Please do not sent other inquires or information to our Designated Agent.
XVII. NOTICE AND
The SITE implements the following notice and takedown
procedure upon receipt of any notification of claimed copyright infringement:
The SITE reserves the right at any time to disable access to, or remove any
material or activity accessible on or from the SITE or any Materials claimed to be
infringing or based on facts or circumstances from which infringing activity is
It is the firm policy of the SITE to terminate the account of repeat copyright
infringers, when appropriate, and the SITE will act expeditiously to remove access to all
material that infringes on anothers copyright, according to the procedure set forth
in 17 U.S.C. 512 of the Digital Millennium Copyright Act (DMCA).The
SITEs DMCA Notice Procedures are set forth in the preceding paragraph. If the notice
does not comply with Paragraph 19 and 512 of the DMCA, but does comply with three
requirements for identifying SITE that are infringing according to 512 of the DMCA, the
SITE shall attempt to contact or take other reasonable steps to contact the complaining
party to help that party comply with the notice requirements.
When the Designated Agent receives a valid notice, the SITE will expeditiously
remove and/or disable access to the infringing material and shall notify the affected
user. Then, the affected user may submit a counter-notification to the Designated Agent
containing a statement made under penalty of perjury that the user has a good faith belief
that the material was removed because of misidentification of the material. After the
Designated Agent receives the counter-notification, it will replace the material at issue
within 10-14 days after receipt of the counter-notification unless the Designated Agent
receives notice that a court action has been filed by the complaining party seeking an
injunction against the infringing activity.
The SITE reserve the right to modify, alter or add to this policy, and all
users should regularly check back to these Terms and Conditions to stay current on any
XVIII. EXPORT CONTROL:
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
You will not
assist or participate in any such diversion or other violation of applicable laws and
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
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.
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.
A. Notice. Any notice required to be given under this
Agreement may be provided by email to a functioning email address of the party to be
noticed, by a general posting on the SITE, or personal delivery by commercial carrier such
as FedEx or Airborne. Notices by customers to SITE shall be given by electronic messages
unless otherwise specified in the Agreement.
of Address. Either party may change the
address to which notice is to be sent by written notice to the other party pursuant to
this provision of the Agreement.
C. When Notice is
Effective. Notices shall be deemed
effective upon delivery. Notices delivered by overnight carrier (e.g., United States
Express Mail or Federal Express) shall be deemed delivered on the business day following
mailing. Notices mailed by United States Mail, postage prepaid, registered or
certified with return receipt requested, shall be deemed delivered five (5) days after
mailing. Notices delivered by any other method shall be deemed given upon
receipt. Notices by email and facsimile transmission, with confirmation from the
transmitting machine that the transmission was completed, are acceptable under this
Agreement provided that they are delivered one (1) hour after transmission if sent during
the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party
may, by giving the other Party appropriate written notice, change the designated address,
fax number and/or recipient for any notice or courtesy copy, hereunder.
Unclaimed, or Undeliverable Notice. Any
correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act
or omission of the Party to be notified shall be deemed effective as of the first date
that said notice was refused or deemed undeliverable by the postal authorities, messenger,
facsimile machine, email server, or overnight delivery service.
XXI. COMMUNICATIONS NOT PRIVATE:
SITE does not provide any facility for sending or receiving
private or confidential electronic communications. All messages transmitted to SITE shall
be deemed to be readily accessible to the general public. Visitors should not use this
SITE to transmit any communication for which the sender intends only the sender and the
intended recipient(s) to read. Notice is
hereby given that all messages entered into this SITE can and may be read by the agents
and operators of this service, regardless of whether they are the intended recipients of
XXII. FORCE MAJEURE:
SITE shall not be responsible for any failure to perform due to
unforeseen circumstances or to causes beyond our reasonable control, including but not
limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or
other natural disasters; war, riot, arson, embargoes, acts of civil or military authority,
or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel,
energy, labor or materials; failure of the telecommunications or information services
infrastructure; hacking, SPAM, or any failure of a computer, server or software, including
Y2K errors or omissions, for so long as such event continues to delay the SITEs
XXIII. GENERAL PROVISIONS:
A. Governing Law. These Terms and Conditions and all matters
arising out of, or otherwise relating to, these Terms and Conditions shall be governed by
the laws of the State of Florida, excluding its conflict of law provisions. The parties agree
that the United Nations Convention on Contracts for the International Sale of Goods is
specifically excluded from application to these Terms and Conditions. The parties hereby submit to the personal
jurisdiction of the state and federal courts of the State of Florida. Exclusive venue for any litigation or arbitration
permitted under this Agreement shall be with the state and federal courts located in Orange County, Florida.
Rights to Injunctive Relief. Both
parties acknowledge that remedies at law may be inadequate to provide an aggrieved party
with full compensation in the event of the other partys breach, and that an
aggrieved party shall therefore be entitled to seek injunctive relief in the event of any
such breach, in addition to seeking all other remedies available at law or in equity.
Binding Arbitration. If there is a dispute between the
Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and
negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to
resolve the dispute through direct negotiations, then, except as otherwise provided
herein, either Party may submit the issue to binding arbitration in accordance with the
then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited
to, contract and tort claims of all kinds, and all claims based on any federal, state or
local law, statute, or regulation, excepting only claims under applicable workers
compensation law, unemployment insurance claims, actions for injunctions, attachment,
garnishment, and other equitable relief. The arbitration shall
be conducted in Orange
County, Florida, and conducted by a single arbitrator,
knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority
to award any punitive or exemplary damages; certify a class action; add any parties; vary
or ignore the provisions of these Terms and Conditions; and shall be bound by governing
and applicable law. The arbitrator shall render a written opinion setting forth all
material facts and the basis of his or her decision within thirty (30) days of the
conclusion of the arbitration proceeding. THE
PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL
D. Assignment. The rights and liabilities of the
parties hereto will bind and inure to the benefit of their respective assignees,
successors, executors, and administrators, as the case may be.
Severability. If for any reason a court of
competent jurisdiction or an arbitrator finds any provision of these Terms and Conditions,
or any portion thereof, to be unenforceable, that provision will be enforced to the
maximum extent permissible and the remainder of these Terms and Conditions will continue
in full force and effect.
Fees. In the event any Party shall
commence any claims, actions, formal legal action, or arbitration to interpret and/or
enforce the terms and conditions of this Agreement, or relating in any way to this
Agreement, including without limitation asserted breaches of representations and
warranties, the prevailing party in any such action or proceeding shall be entitled to
recover, in addition to all other available relief, its reasonable attorneys fees
and costs incurred in connection therewith, including attorneys fees incurred on
No Waiver. No waiver of SITE shall be deemed a
waiver of any subsequent default of the same provision of these Terms and Conditions. If any term, clause or provision hereof is held
invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not
affect the validity or operation of any other term, clause or provision and such invalid
term, clause or provision shall be deemed to be severed from these Terms and Conditions.
Headings. All headings are solely for the
convenience of reference and shall not affect the meaning, construction or effect of these
Terms and Conditions.
Complete Agreement. These Terms and Conditions constitute
the entire agreement between the parties with respect to your access and use of the SITE
and the Materials contained therein, and your membership with the SITE, and supersede and
replace all prior understandings or agreements, written or oral, regarding such subject
Modifications. SITE reserves the
right to change any of the provisions posted herein and you agree to review these Terms
and Conditions each time you visit the SITE. Your continued use of the SITE following the
SITEs posting of any changes to these Terms and Conditions constitutes your
acceptance of such changes. The SITE does not and will not assume any obligation to
provide you with notice of any change to these Terms and Conditions. Unless accepted by
SITE in writing, these Terms and Conditions may not be amended by you.
Government Rights. The software elements of the
Materials have been developed at private expense and are commercial computer
software or restricted computer software within the meaning of the FARs, the DFARs, and any other similar
regulations relating to government acquisition of computer software. Nothing contained
herein will be deemed to: (1) grant any government agency any license or other rights
greater than are mandated by statute or regulation for commercial computer software
developed entirely at private expense, or (2) restrict any government rights in any
extensions or custom solutions provided hereunder and developed at government expense. You further agree
not to upload to our SITE any data or software that cannot be exported without prior
written government authorization, including, but not limited to, certain types of
encryption software. This assurance and commitment shall survive termination of this
Other Jurisdictions. SITE makes no representation that the
SITE or any of the Materials contained therein are appropriate or available for use in
other locations, and access to them from territories where their content may be illegal or
is otherwise prohibited. Those who choose to access the SITE from such locations do on their own initiative and are solely responsible for compliance
with all applicable local laws.
COMPLAINTS CALIFORNIA RESIDENTS
The Complaint Assistance Unit of the Division of Consumer
Services of the Department of Consumer Affairs may be contacted in writing at 1020 N.
Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
document was prepared by Lawrence G. Walters, Esq., of www.FirstAmendment.com.
18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement -
Terms and Conditions
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