Terms & Conditions
Effective as of May 28, 2009
WELCOME TO SEX.COM!
We are Escom, LLC, the owner and operator of the domain located at http://www.sex.com and its affiliated sites, or simply our "Domain." We have created a Domain where adults can share information about matters of interest to them. This includes sex, dating, relationships, travel, food, work, experiences anything that active adults consider important to their lives. Our goal is to make using our Domain as easy as possible. However, we need some rules to make sure everything operates smoothly. That is what these Terms and Conditions are all about. They set out rules for accessing our Domain and using its content and services. Please take a moment to read these Terms and Conditions as set they set forth your rights and responsibilities when using our Domain.
1. ABOUT OUR DOMAIN
1.1 These Terms and Conditions Are a Binding Legal Contract
Our "Terms and Conditions" mean the provisions on this page as well as supplementary terms in our Privacy Policy, and those provided for specific products or services. In case of a conflict between the provisions on this page and any supplementary terms, the supplementary terms prevail. Our Terms and Conditions constitute a binding legal contract between us regarding your access to our Domain and your use of any of its Contents or services which you accept by accessing our Domain. If you do not agree to anything in these Terms and Conditions you should not access our Domain. However, if you do agree to abide by our Terms and Conditions then please come in. Note that these Terms and Conditions are subject to change as provided in Paragraph 1.9 and your acceptance applies to all changes as well.
1.2 Navigating Our Domain
Our Domain has several components. There is the main area in which you can browse information about our Domain. We also host an adult Community where you can share information and experiences with other adults, a Store where you can download Content or buy Merchandise, and Channels where you can view offerings from our Channel Partners. In order to access our Community, Channels or explicit Adult Content in our Store, we require that you become a Member and obtain a Username and Password. IOur Domain may contain images that are only suitable for adults. In order to view these images, we require you to take an additional step and become what we call "Adult Authorized." This requires some additional age verification information and a small fee to cover our costs. Once you are Adult Authorized you can access and view all areas and all images on our Domain.
1.3 Our Domain Is Not Intended for Children
Our Domain contains Content consisting of text, graphics, artwork, images, photographs, merchandise, audio clips, video clips, icons and software, along with their selection, design and arrangement. Some our Content may only be suitable adults. As a result, you must be at least 18 years of age, or the age of majority where you live if older, to access certain sections of our Domain, such as our Community, our Store or our Channels. Sorry, there are no exceptions. By signing up to become a Member or attempting to access these sections you positively certify that you are older than 18 years of age or the age of majority where you live, whichever is older; that you are familiar with all local laws in your area affecting your right to access adult-oriented materials; that you have the legal right to access adult-oriented materials and we have the legal right to transmit them to you; and that you will never attempt to share any adult-oriented Content or materials from our Domain with a minor in any way.
4. OPERATION OF OUR DOMAIN
4.1 Intellectual Property Rights on Our Domain
The intellectual property rights in the Content on our Domain are owned either by us or our affiliated companies. As such, all the Content on our Domain is protected by applicable patent, copyright, trademark and other intellectual property law. Granting you access to our Domain does not grant you any ownership rights in any intellectual property on our Domain. You are only granted a limited license to access our Domain and it's Content in conformity with these Terms and Conditions. Any other attempted access to or use of our Domain or its Contents may infringe our intellectual property rights or those of our suppliers. Sex.comŽ is a registered trademark of Escom, LLC. There are other trademarks, logos, slogans, and product designations on our Domain. They are only authorized for use on our Domain in conjunction with the particular product or service they designate and you may not use them in any other manner. No trademark, logo or slogan on our Domain may be used as a hyperlink without the prior written permission of its owner. Downloading or printing a copy of any Content on our Domain does not transfer title to the copy to you unless expressly so stated in each case when you download or print. If you do not own title to any copy you may only use such copy for limited periods for your private use in accordance with these Terms and Conditions.
4.2 Data Mining Is Not Allowed
Our Domain may only be navigated by the search functions on our Domain and generally available web browsers (e.g., Netscape Navigator or Microsoft Internet Explorer). We do not allow "bots," electronic robots, crawlers, spiders, avatars, i-agents, automated data mining programs or like software tools to access our Domain to harvest our data, create a compilation of our Contents or catalog our services. Nothing in these Terms and Conditions authorizes such use, directly or by implication. Any use of such tools will be a material breach of these Terms and Conditions and an infringement of our rights.
4.3 DRM Circumvention Is Not Allowed
We or our affiliated companies may use digital rights management, copy protection or anti-circumvention software or devices to prevent unauthorized access to our Domain or copying or use of any of our Content. Any attempt to circumvent such software or devices is not allowed and will be a material breach of these Terms and Conditions and an infringement of our rights and those of the Content owners. You agree not to reverse engineer, decompile, circumvent, nullify or remove and such software or devices, and you waive to the fullest extent allowed by law any right or privilege you may have to do so.
4.4 Unauthorized Conduct
In order to maintain the integrity of our Domain we restrict or prohibit certain conduct. Engaging in or supporting any of the following conduct will be a material breach of these Terms and Conditions and allow us to suspend or terminate your access to our Domain without prior notice to you:
1. Accessing data not intended for you or logging into a server or account which you are not authorized to access.
2. Attempting to probe, scan, or test the vulnerability of the system or network or to breach the security or authentication measures of our Domain without authorization.
3. Forging any headers or otherwise manipulating any Domain identifiers in order to disguise the origin of any transmission through our Domain.
4. Attempting to interfere with the service to any user, host or network, including by uploading a virus to our Domain, or overloading, flooding, spamming, "mail-bombing," or "crashing" our Domain or the server of any user.
5. Sending unsolicited commercial e-mail individually or in bulk (also called Spam), which promotes or advertises our Domain or our affiliates, advertisers Channel partners, Community Members, or any of their products or services.
6. Harvesting e-mail addresses off our Domain through an automated process.
7. Bypassing our Domain's homepage via deep-linking or framing any part of our Domain without our prior express written permission 8. Linking to our Domain in an e-mail sent for commercial purposes without our prior express written permission.
9. Attempting to gain unauthorized access to our Domain's Content or services, or interfering with or manipulating in any manner the entry or registration process for our Domain.
10. Falsifying identification or impersonating any person or entity, including our employees, in any chat room, or as any public forum leader, host, or guide, when accessing or participating in our Community or any communication feature or chat room on our Domain.
11. Setting up fake sites or dummy websites that purport to be our Domain, mirroring our Domain's contents, or otherwise copying without our authorization any part of our Domain or its layout.
You should be aware that any actual or attempted unauthorized access to our Domain or engaging in any of the above unauthorized conduct may result in civil or criminal liability.
4.5 We Reserve the Right to Investigate Any Attempted Security Violations
We reserve the right in our discretion to investigate any possible or attempted violations of our system or network security, or digital rights management, copy protection or anti-circumvention software or devices. We may involve and cooperate with any Internet service provider or law enforcement authorities in investigating or prosecuting anyone involved in such violations. We may also terminate the Membership of any person whom we believe, in our sole judgment, to have participated in any such violations. While we may investigate such violations, we do not have nay obligation to do so. We do not guarantee that your access to our Domain or use of its services will be free of any security violations.
4.6 We May Use Third Party Software on Our Domain
We may use software from third parties in operating of our Domain. We may also require you to use software from other suppliers to view any Content on our Domain, like a media player. Any Content may contain digital rights management or copy protection software from third parties. We need not provide you with notice about our use of any of this third party software. In any, all our disclaimers, exclusions and limitations in Paragraphs 5.1, 5.2 and 5.3 also apply to all such third party software.
4.7 DMCA Information - Notice of Copyright Infringement And Counter-Notice
Please see our Copyright Policy for more information.
4.8 Making Suggestions To Improve our Domain
We appreciate any ideas or suggestions you have to improve our Domain. Please send them to us! In doing so, you agree we can use any idea or suggestion you give to us in any and all manner and media now known or later arising without any attribution to you, and you grant us a non-exclusive, fully transferrable, royalty-free, worldwide, irrevocable and perpetual license to do so. You also warrant to us that you have the right and authority to authorize such use and grant such license and that your idea or suggestion will not infringe any rights of any other person.
4.9 Changing Our Terms and Conditions - Check for Current Versions
Periodically we may want to change our Terms and Conditions to improve our Domain, to deal with new developments or otherwise as we see fit. Therefore, you should periodically check our Terms and Conditions to find the latest versions. You agree that we can make changes by posting the changed Terms and Conditions on our Domain with a notice that indicates their effective date. We will endeavor to post a notice about any upcoming change to our Terms and Conditions on our Domain 10 days before it becomes effective, but do not guarantee to do so. If you do not like any change, then you can always leave our Domain or cancel your Membership. However, you agree that your continued access to our Domain after a change becomes effective means that you accept the changed Terms and Conditions. We agree that no such change will diminish your rights with respect to any Claim (see Paragraph 5.5) you may have that accrued before the effective date of any such change.
4.10 Changing Our Domain and Its Content
We are always looking to improve our Domain. Thus, we may regularly change its appearance, functionality and Content. You acknowledge that we may do so at any time as we like without prior notice to you. However, we make no commitment to so.
4.11 We Are Not Responsible for Third-Party Content or Third-Party Websites
Our Domain often includes Third-Party Content, meaning Content from other parties, including our affiliated companies, advertisers, sponsors, and other Members who make Postings in the Community. Our Domain may also include links to Third-Party Websites meaning websites operated by other parties such as our Channel Partners, advertisers, sponsors, affiliates or Members. We do so because we believe it may be of interest to you and not as an endorsement. Our so doing does not constitute an endorsement or approval of any Third-Party Content or Third-Party Website, or any goods, services, opinions, links or messages they may contain, or any of their business methods, advertising practices or privacy policies. We do not verify or take responsibility for the truthfulness, accuracy, quality, merchantability, fitness, or completeness of any Third-Party Content or the information or activities of any Third-Party Websites. You agree that we will not be liable, directly or indirectly, for any loss, liability or damage of any kind arising for any reason from your use of or reliance on any Third-Party Content or Third-Party Website, which you do at your own risk. You may on occasion participate in advertising or promotions offered on our Domain. In so doing your relationship will be with the applicable advertiser or promoter, not us. We are not responsible for any term, representation or warranty made by any advertiser or promoter on our Domain or for any Content, goods or services offered by them.
4.12 Establishing Links from Our Domain to Other Websites
If you would like to establish a link from your website to our Community, please contact us first. Generally, we require a linked website to become a Channel partner under a separate agreement. You may not establish a link to another website without our prior written permission.
4.13 We May Monitor Usage
We may use software that automatically tracks performance and usage information to evaluate our Domain. The software will not personally identify you.
4.14 Please Read Our Privacy Policy
Our Privacy Policy is posted on our Domain. Please read it. We may amend our Privacy Policy from time to time by posting notice of the amended Privacy Policy on our Community. Your agreement to these Terms of Use or your continued access to our Community indicates your agreement to our Privacy Policy. If you do not agree to our Privacy Policy at any time, please exit our Community and our Domain.
5. LIABILITY LIMITATIONS AND CLAIMS HANDLING
5.1 Our Warranty Disclaimers
We are providing you access to our Domain and its Contents "as is," "with all faults" and "as available." The entire risk as to satisfactory quality, performance, accuracy, and effort is with you. There is no warranty that the Domain or any of its Contents will meet your needs or requirements. To the maximum extent allowed by Law we disclaim all warranties, express, statutory or implied, including warranties of merchantability, fitness for a particular purpose, workmanlike effort, accuracy, completeness, title, exclusivity, quiet enjoyment and non-infringement, and warranties that your access to or use of our Community will be uninterrupted or error-free. There are no warranties of any kind that extend beyond the face of this agreement or that arise as a result of course of performance, course of dealing or usage of trade.
5.2 Our Additional Liability Disclaimers
In your access to our Domain you agree we are not liable for: (1) any information, comments or material you receive that is infringing, inaccurate, obscene, indecent, threatening, offensive, defamatory, invasive of privacy, or illegal; (2) any third party's unauthorized access to or alterations of your account, transmissions or data; (3) any viruses or other disabling code that may infect your computer or affect your access to or use of the Domain, your other services, hardware or software; (4) any incompatibility between the Domain and your other services, hardware or software, or (5) any delays or failures you may experience in initiating, conducting or completing any transmissions to or transactions with the Domain.
5.3 Our Damages Limitation
To the maximum extent allowed by Law, our total liability for any claim arising from these Terms and Conditions or your access to our Domain is limited solely to your incidental and direct damages, if any, but not to exceed the greater of us$500 or the amount actually paid by you for any access or service giving rise to the claim. Recovery of these damages will be your sole and exclusive remedy, and we disclaim any liability for any other damages of any kind arising out of these Terms and Conditions or your access to our Domain. In no event will either of us be liable for any special, consequential or punitive damages arising out of or related to these Terms and Conditions or your access to our Domain. This exclusion of special, consequential and punitive damages is independent of your exclusive remedy and survives even if such remedy fails of its essential purpose or is otherwise unenforceable. To the maximum extent allowed by Law the limitations on liability in this paragraph apply without regard to the claim for which they arose, whether due to strict liability, breach of warranty (express or implied), beach of contract, or any tort or negligence, active or passive.
5.4 The Scope of Our Disclaimers
The disclaimers, exclusions and limitations in paragraphs in Paragraphs 5.1, 5.2 and 5.3 apply to the maximum extent permitted by applicable law, but no more. They are not intended to deprive you of any mandatory protections provided to you under applicable law. Because some jurisdictions may prohibit the exclusion or limitation of certain warranties, or liability for consequential damages, or other matters, some or all of such disclaimers, exclusions or limitation may not apply to you.
5.5 Asserting Claims
A Claim means any assertion that either of us has breached any obligation or impaired any right of the other arising under or with respect to these Terms and Conditions, or any other dispute about your access to our Domain or its Content or services, other than claim that either one of us has violated the intellectual property rights of the other. If you have any Claim against us, please let us know! Call our customer service department or contact us as indicated on our Domain. We would like to try to resolve all Claims in a fast and friendly manner to ensure your continued satisfaction.
5.6 Limited Time to Bring Claims
In order to allow each of us to address any Claims in a timely manner, each of us agree to give the other one Notice of any Claim we may have within one (1) year after our Claim accrued. If we are unable to resolve any Claim amicably then we also agree to commence an appropriate legal or arbitration proceedings pursuant to Paragraphs 5.7 and 5.8 to resolve the Claim within six (6) months after giving the other party Notice. To the maximum extent allowed by applicable law, we both agree that a failure to abide by either of these time limits will mean the Claim is permanently barred.
5.7 Forum for Resolving Claims
The Forum for resolving all Claims not covered by or including those in Paragraph 5.8 will be in the state or federal courts in Los Angeles County, California. We both agree to submit to the personal jurisdiction of the state and federal courts in the Forum for resolving those Claims. We also both agree to the full extent allowed by law that the Forum is the exclusive venue for resolving these Claims and we each waive any right to seek another venue due to an improper or inconvenient Forum.
5.8 Resolution of Claims - Your Choice of Consumer Arbitration or Small Claims Case
If we are unable to resolve any Claim amicably, then we both agree that all Claims will be resolved by neutral, binding arbitration in the Forum under the Consumer Arbitration Rules of the American Arbitration Association in effect as of the Effective Date of these Terms and Conditions (the "AAA Rules"). As of the Effective Date you can read these rules at http://www.adr.org/arb_med. The arbitrator will have authority to consider any statutory or other claims available to a consumer under applicable federal, state or local laws that are within the scope of the submission to arbitration and to award all damages or other remedies under applicable consumer law. To the extent allowed by the AAA rules, as an alternative to arbitration you may pursue your claim in a small claims court in the Forum to the extent it has jurisdiction, but if you elect to file a small claims action then the matters raised in the small claims action will not be subject to arbitration.
5.9 Infringement Claims Are Different
An Infringement Claim means any claim that either one of us has violated the intellectual property rights of the other. The above provisions regarding Claims do not apply to Infringement Claims. Any Infringement Claims we may have will be resolved by normal legal means.
6. SENDING AND RECEIVING NOTICE
6.1 Sending Notice to Us
You may send notice to us by e-mail, by calling our customer service department, or by writing to us at the locations shown on our Domain. An electronic notice will be considered received by us only when our server sends a return message to you acknowledging receipt. We may change our contact information from time to time by posting the change on our Domain, so make sure to check out the Customer Support area of our Domain for the most current information for sending notice to us.
6.2 Sending Notice to You - Electronic Notice
You consent to receiving any notice from us in electronic form either: (1) by sending an e-mail to the e-mail address you specified when you signed up to receive your Username and Password or (2) by posting the notice on a location on our Domain designated for such purpose. Notices sent to you by e-mail will be deemed received when our e-mail service indicates transmission to your e-mail address. You confirm the e-mail address you gave when you signed up is a current and valid one for receiving notice, and that your computer has hardware and software configured to send and receive e-mails via the Internet and to print any e-mail message you receive. If you change your e-mail address, you agree that you will promptly update your membership information with your current e-mail address for receiving notice. You may change this consent at any time and request paper notice by normal postal delivery, but if you do we may in our discretion elect to cancel your access to our Domain at any time (because of the increased costs and hassle). If we do agree to send postal notice we may ask you to reimburse us for the reasonable cost and postage of so doing.
6.3. Electronic Communications Not Private
We do not provide facilities for sending or receiving confidential electronic communications. All messages transmitted to us or from us should be considered open communications and be readily accessible to the general public. You should not use any facilities on our Domain to transmit or receive messages only intended to be read by the sender and designated recipients. All messages sent to our Domain or the Community may be read by users or operators of our Domain or the Community regardless if they are intended recipients.
7. MISCELLANEOUS PROVISIONS
7.1 You may Copy or Print These Terms and Conditions
You may send a copy these Terms and Conditions or send them to your printer for printing. Please feel free to do so! If you are having trouble printing a copy, please contact us and we will be happy to send you a copy.
7.2 No Verbal Amendment
These Terms and Conditions may only be amended in a record, such an e-mail or writing duly authenticated by the party to be charged. None of our agents or customer service representatives are authorized to waive any or modify any provision of these Terms and Conditions, and any allegation that they have done so will be ineffective.
7.3 Superseding Effect
These Terms and Conditions supersede all prior terms of use, access, communications or proposals, whether electronic, oral or written, between you and us regarding access to our Domain or use of its Contents or services.
7.4 Governing Law
These Terms and Conditions will be governed by and interpreted under the laws of the State of California except only to the extent applicable consumer protection laws in your state of residence in the United States specifically supersede California law and require their application instead. The predominant purpose of this Terms and Conditions is providing services and licensing access to intellectual property and not a "sale of goods."
WELCOME TO SEX.COM!
We are Escom, LLC, the owner and operator of the domain located at http://www.sex.com and its affiliated sites, or simply our "Domain." We have created a Domain where adults can share information about matters of interest to them. This includes sex, dating, relationships, travel, food, work, experiences anything that active adults consider important to their lives. Our goal is to make using our Domain as easy as possible. However, we need some rules to make sure everything operates smoothly. That is what these Terms and Conditions are all about. They set out rules for accessing our Domain and using its content and services. Please take a moment to read these Terms and Conditions as set they set forth your rights and responsibilities when using our Domain.
1. ABOUT OUR DOMAIN
1.1 These Terms and Conditions Are a Binding Legal Contract
Our "Terms and Conditions" mean the provisions on this page as well as supplementary terms in our Privacy Policy, and those provided for specific products or services. In case of a conflict between the provisions on this page and any supplementary terms, the supplementary terms prevail. Our Terms and Conditions constitute a binding legal contract between us regarding your access to our Domain and your use of any of its Contents or services which you accept by accessing our Domain. If you do not agree to anything in these Terms and Conditions you should not access our Domain. However, if you do agree to abide by our Terms and Conditions then please come in. Note that these Terms and Conditions are subject to change as provided in Paragraph 1.9 and your acceptance applies to all changes as well.
1.2 Navigating Our Domain
Our Domain has several components. There is the main area in which you can browse information about our Domain. We also host an adult Community where you can share information and experiences with other adults, a Store where you can download Content or buy Merchandise, and Channels where you can view offerings from our Channel Partners. In order to access our Community, Channels or explicit Adult Content in our Store, we require that you become a Member and obtain a Username and Password. IOur Domain may contain images that are only suitable for adults. In order to view these images, we require you to take an additional step and become what we call "Adult Authorized." This requires some additional age verification information and a small fee to cover our costs. Once you are Adult Authorized you can access and view all areas and all images on our Domain.
1.3 Our Domain Is Not Intended for Children
Our Domain contains Content consisting of text, graphics, artwork, images, photographs, merchandise, audio clips, video clips, icons and software, along with their selection, design and arrangement. Some our Content may only be suitable adults. As a result, you must be at least 18 years of age, or the age of majority where you live if older, to access certain sections of our Domain, such as our Community, our Store or our Channels. Sorry, there are no exceptions. By signing up to become a Member or attempting to access these sections you positively certify that you are older than 18 years of age or the age of majority where you live, whichever is older; that you are familiar with all local laws in your area affecting your right to access adult-oriented materials; that you have the legal right to access adult-oriented materials and we have the legal right to transmit them to you; and that you will never attempt to share any adult-oriented Content or materials from our Domain with a minor in any way.
4. OPERATION OF OUR DOMAIN
4.1 Intellectual Property Rights on Our Domain
The intellectual property rights in the Content on our Domain are owned either by us or our affiliated companies. As such, all the Content on our Domain is protected by applicable patent, copyright, trademark and other intellectual property law. Granting you access to our Domain does not grant you any ownership rights in any intellectual property on our Domain. You are only granted a limited license to access our Domain and it's Content in conformity with these Terms and Conditions. Any other attempted access to or use of our Domain or its Contents may infringe our intellectual property rights or those of our suppliers. Sex.comŽ is a registered trademark of Escom, LLC. There are other trademarks, logos, slogans, and product designations on our Domain. They are only authorized for use on our Domain in conjunction with the particular product or service they designate and you may not use them in any other manner. No trademark, logo or slogan on our Domain may be used as a hyperlink without the prior written permission of its owner. Downloading or printing a copy of any Content on our Domain does not transfer title to the copy to you unless expressly so stated in each case when you download or print. If you do not own title to any copy you may only use such copy for limited periods for your private use in accordance with these Terms and Conditions.
4.2 Data Mining Is Not Allowed
Our Domain may only be navigated by the search functions on our Domain and generally available web browsers (e.g., Netscape Navigator or Microsoft Internet Explorer). We do not allow "bots," electronic robots, crawlers, spiders, avatars, i-agents, automated data mining programs or like software tools to access our Domain to harvest our data, create a compilation of our Contents or catalog our services. Nothing in these Terms and Conditions authorizes such use, directly or by implication. Any use of such tools will be a material breach of these Terms and Conditions and an infringement of our rights.
4.3 DRM Circumvention Is Not Allowed
We or our affiliated companies may use digital rights management, copy protection or anti-circumvention software or devices to prevent unauthorized access to our Domain or copying or use of any of our Content. Any attempt to circumvent such software or devices is not allowed and will be a material breach of these Terms and Conditions and an infringement of our rights and those of the Content owners. You agree not to reverse engineer, decompile, circumvent, nullify or remove and such software or devices, and you waive to the fullest extent allowed by law any right or privilege you may have to do so.
4.4 Unauthorized Conduct
In order to maintain the integrity of our Domain we restrict or prohibit certain conduct. Engaging in or supporting any of the following conduct will be a material breach of these Terms and Conditions and allow us to suspend or terminate your access to our Domain without prior notice to you:
1. Accessing data not intended for you or logging into a server or account which you are not authorized to access.
2. Attempting to probe, scan, or test the vulnerability of the system or network or to breach the security or authentication measures of our Domain without authorization.
3. Forging any headers or otherwise manipulating any Domain identifiers in order to disguise the origin of any transmission through our Domain.
4. Attempting to interfere with the service to any user, host or network, including by uploading a virus to our Domain, or overloading, flooding, spamming, "mail-bombing," or "crashing" our Domain or the server of any user.
5. Sending unsolicited commercial e-mail individually or in bulk (also called Spam), which promotes or advertises our Domain or our affiliates, advertisers Channel partners, Community Members, or any of their products or services.
6. Harvesting e-mail addresses off our Domain through an automated process.
7. Bypassing our Domain's homepage via deep-linking or framing any part of our Domain without our prior express written permission 8. Linking to our Domain in an e-mail sent for commercial purposes without our prior express written permission.
9. Attempting to gain unauthorized access to our Domain's Content or services, or interfering with or manipulating in any manner the entry or registration process for our Domain.
10. Falsifying identification or impersonating any person or entity, including our employees, in any chat room, or as any public forum leader, host, or guide, when accessing or participating in our Community or any communication feature or chat room on our Domain.
11. Setting up fake sites or dummy websites that purport to be our Domain, mirroring our Domain's contents, or otherwise copying without our authorization any part of our Domain or its layout.
You should be aware that any actual or attempted unauthorized access to our Domain or engaging in any of the above unauthorized conduct may result in civil or criminal liability.
4.5 We Reserve the Right to Investigate Any Attempted Security Violations
We reserve the right in our discretion to investigate any possible or attempted violations of our system or network security, or digital rights management, copy protection or anti-circumvention software or devices. We may involve and cooperate with any Internet service provider or law enforcement authorities in investigating or prosecuting anyone involved in such violations. We may also terminate the Membership of any person whom we believe, in our sole judgment, to have participated in any such violations. While we may investigate such violations, we do not have nay obligation to do so. We do not guarantee that your access to our Domain or use of its services will be free of any security violations.
4.6 We May Use Third Party Software on Our Domain
We may use software from third parties in operating of our Domain. We may also require you to use software from other suppliers to view any Content on our Domain, like a media player. Any Content may contain digital rights management or copy protection software from third parties. We need not provide you with notice about our use of any of this third party software. In any, all our disclaimers, exclusions and limitations in Paragraphs 5.1, 5.2 and 5.3 also apply to all such third party software.
4.7 DMCA Information - Notice of Copyright Infringement And Counter-Notice
Please see our Copyright Policy for more information.
4.8 Making Suggestions To Improve our Domain
We appreciate any ideas or suggestions you have to improve our Domain. Please send them to us! In doing so, you agree we can use any idea or suggestion you give to us in any and all manner and media now known or later arising without any attribution to you, and you grant us a non-exclusive, fully transferrable, royalty-free, worldwide, irrevocable and perpetual license to do so. You also warrant to us that you have the right and authority to authorize such use and grant such license and that your idea or suggestion will not infringe any rights of any other person.
4.9 Changing Our Terms and Conditions - Check for Current Versions
Periodically we may want to change our Terms and Conditions to improve our Domain, to deal with new developments or otherwise as we see fit. Therefore, you should periodically check our Terms and Conditions to find the latest versions. You agree that we can make changes by posting the changed Terms and Conditions on our Domain with a notice that indicates their effective date. We will endeavor to post a notice about any upcoming change to our Terms and Conditions on our Domain 10 days before it becomes effective, but do not guarantee to do so. If you do not like any change, then you can always leave our Domain or cancel your Membership. However, you agree that your continued access to our Domain after a change becomes effective means that you accept the changed Terms and Conditions. We agree that no such change will diminish your rights with respect to any Claim (see Paragraph 5.5) you may have that accrued before the effective date of any such change.
4.10 Changing Our Domain and Its Content
We are always looking to improve our Domain. Thus, we may regularly change its appearance, functionality and Content. You acknowledge that we may do so at any time as we like without prior notice to you. However, we make no commitment to so.
4.11 We Are Not Responsible for Third-Party Content or Third-Party Websites
Our Domain often includes Third-Party Content, meaning Content from other parties, including our affiliated companies, advertisers, sponsors, and other Members who make Postings in the Community. Our Domain may also include links to Third-Party Websites meaning websites operated by other parties such as our Channel Partners, advertisers, sponsors, affiliates or Members. We do so because we believe it may be of interest to you and not as an endorsement. Our so doing does not constitute an endorsement or approval of any Third-Party Content or Third-Party Website, or any goods, services, opinions, links or messages they may contain, or any of their business methods, advertising practices or privacy policies. We do not verify or take responsibility for the truthfulness, accuracy, quality, merchantability, fitness, or completeness of any Third-Party Content or the information or activities of any Third-Party Websites. You agree that we will not be liable, directly or indirectly, for any loss, liability or damage of any kind arising for any reason from your use of or reliance on any Third-Party Content or Third-Party Website, which you do at your own risk. You may on occasion participate in advertising or promotions offered on our Domain. In so doing your relationship will be with the applicable advertiser or promoter, not us. We are not responsible for any term, representation or warranty made by any advertiser or promoter on our Domain or for any Content, goods or services offered by them.
4.12 Establishing Links from Our Domain to Other Websites
If you would like to establish a link from your website to our Community, please contact us first. Generally, we require a linked website to become a Channel partner under a separate agreement. You may not establish a link to another website without our prior written permission.
4.13 We May Monitor Usage
We may use software that automatically tracks performance and usage information to evaluate our Domain. The software will not personally identify you.
4.14 Please Read Our Privacy Policy
Our Privacy Policy is posted on our Domain. Please read it. We may amend our Privacy Policy from time to time by posting notice of the amended Privacy Policy on our Community. Your agreement to these Terms of Use or your continued access to our Community indicates your agreement to our Privacy Policy. If you do not agree to our Privacy Policy at any time, please exit our Community and our Domain.
5. LIABILITY LIMITATIONS AND CLAIMS HANDLING
5.1 Our Warranty Disclaimers
We are providing you access to our Domain and its Contents "as is," "with all faults" and "as available." The entire risk as to satisfactory quality, performance, accuracy, and effort is with you. There is no warranty that the Domain or any of its Contents will meet your needs or requirements. To the maximum extent allowed by Law we disclaim all warranties, express, statutory or implied, including warranties of merchantability, fitness for a particular purpose, workmanlike effort, accuracy, completeness, title, exclusivity, quiet enjoyment and non-infringement, and warranties that your access to or use of our Community will be uninterrupted or error-free. There are no warranties of any kind that extend beyond the face of this agreement or that arise as a result of course of performance, course of dealing or usage of trade.
5.2 Our Additional Liability Disclaimers
In your access to our Domain you agree we are not liable for: (1) any information, comments or material you receive that is infringing, inaccurate, obscene, indecent, threatening, offensive, defamatory, invasive of privacy, or illegal; (2) any third party's unauthorized access to or alterations of your account, transmissions or data; (3) any viruses or other disabling code that may infect your computer or affect your access to or use of the Domain, your other services, hardware or software; (4) any incompatibility between the Domain and your other services, hardware or software, or (5) any delays or failures you may experience in initiating, conducting or completing any transmissions to or transactions with the Domain.
5.3 Our Damages Limitation
To the maximum extent allowed by Law, our total liability for any claim arising from these Terms and Conditions or your access to our Domain is limited solely to your incidental and direct damages, if any, but not to exceed the greater of us$500 or the amount actually paid by you for any access or service giving rise to the claim. Recovery of these damages will be your sole and exclusive remedy, and we disclaim any liability for any other damages of any kind arising out of these Terms and Conditions or your access to our Domain. In no event will either of us be liable for any special, consequential or punitive damages arising out of or related to these Terms and Conditions or your access to our Domain. This exclusion of special, consequential and punitive damages is independent of your exclusive remedy and survives even if such remedy fails of its essential purpose or is otherwise unenforceable. To the maximum extent allowed by Law the limitations on liability in this paragraph apply without regard to the claim for which they arose, whether due to strict liability, breach of warranty (express or implied), beach of contract, or any tort or negligence, active or passive.
5.4 The Scope of Our Disclaimers
The disclaimers, exclusions and limitations in paragraphs in Paragraphs 5.1, 5.2 and 5.3 apply to the maximum extent permitted by applicable law, but no more. They are not intended to deprive you of any mandatory protections provided to you under applicable law. Because some jurisdictions may prohibit the exclusion or limitation of certain warranties, or liability for consequential damages, or other matters, some or all of such disclaimers, exclusions or limitation may not apply to you.
5.5 Asserting Claims
A Claim means any assertion that either of us has breached any obligation or impaired any right of the other arising under or with respect to these Terms and Conditions, or any other dispute about your access to our Domain or its Content or services, other than claim that either one of us has violated the intellectual property rights of the other. If you have any Claim against us, please let us know! Call our customer service department or contact us as indicated on our Domain. We would like to try to resolve all Claims in a fast and friendly manner to ensure your continued satisfaction.
5.6 Limited Time to Bring Claims
In order to allow each of us to address any Claims in a timely manner, each of us agree to give the other one Notice of any Claim we may have within one (1) year after our Claim accrued. If we are unable to resolve any Claim amicably then we also agree to commence an appropriate legal or arbitration proceedings pursuant to Paragraphs 5.7 and 5.8 to resolve the Claim within six (6) months after giving the other party Notice. To the maximum extent allowed by applicable law, we both agree that a failure to abide by either of these time limits will mean the Claim is permanently barred.
5.7 Forum for Resolving Claims
The Forum for resolving all Claims not covered by or including those in Paragraph 5.8 will be in the state or federal courts in Los Angeles County, California. We both agree to submit to the personal jurisdiction of the state and federal courts in the Forum for resolving those Claims. We also both agree to the full extent allowed by law that the Forum is the exclusive venue for resolving these Claims and we each waive any right to seek another venue due to an improper or inconvenient Forum.
5.8 Resolution of Claims - Your Choice of Consumer Arbitration or Small Claims Case
If we are unable to resolve any Claim amicably, then we both agree that all Claims will be resolved by neutral, binding arbitration in the Forum under the Consumer Arbitration Rules of the American Arbitration Association in effect as of the Effective Date of these Terms and Conditions (the "AAA Rules"). As of the Effective Date you can read these rules at http://www.adr.org/arb_med. The arbitrator will have authority to consider any statutory or other claims available to a consumer under applicable federal, state or local laws that are within the scope of the submission to arbitration and to award all damages or other remedies under applicable consumer law. To the extent allowed by the AAA rules, as an alternative to arbitration you may pursue your claim in a small claims court in the Forum to the extent it has jurisdiction, but if you elect to file a small claims action then the matters raised in the small claims action will not be subject to arbitration.
5.9 Infringement Claims Are Different
An Infringement Claim means any claim that either one of us has violated the intellectual property rights of the other. The above provisions regarding Claims do not apply to Infringement Claims. Any Infringement Claims we may have will be resolved by normal legal means.
6. SENDING AND RECEIVING NOTICE
6.1 Sending Notice to Us
You may send notice to us by e-mail, by calling our customer service department, or by writing to us at the locations shown on our Domain. An electronic notice will be considered received by us only when our server sends a return message to you acknowledging receipt. We may change our contact information from time to time by posting the change on our Domain, so make sure to check out the Customer Support area of our Domain for the most current information for sending notice to us.
6.2 Sending Notice to You - Electronic Notice
You consent to receiving any notice from us in electronic form either: (1) by sending an e-mail to the e-mail address you specified when you signed up to receive your Username and Password or (2) by posting the notice on a location on our Domain designated for such purpose. Notices sent to you by e-mail will be deemed received when our e-mail service indicates transmission to your e-mail address. You confirm the e-mail address you gave when you signed up is a current and valid one for receiving notice, and that your computer has hardware and software configured to send and receive e-mails via the Internet and to print any e-mail message you receive. If you change your e-mail address, you agree that you will promptly update your membership information with your current e-mail address for receiving notice. You may change this consent at any time and request paper notice by normal postal delivery, but if you do we may in our discretion elect to cancel your access to our Domain at any time (because of the increased costs and hassle). If we do agree to send postal notice we may ask you to reimburse us for the reasonable cost and postage of so doing.
6.3. Electronic Communications Not Private
We do not provide facilities for sending or receiving confidential electronic communications. All messages transmitted to us or from us should be considered open communications and be readily accessible to the general public. You should not use any facilities on our Domain to transmit or receive messages only intended to be read by the sender and designated recipients. All messages sent to our Domain or the Community may be read by users or operators of our Domain or the Community regardless if they are intended recipients.
7. MISCELLANEOUS PROVISIONS
7.1 You may Copy or Print These Terms and Conditions
You may send a copy these Terms and Conditions or send them to your printer for printing. Please feel free to do so! If you are having trouble printing a copy, please contact us and we will be happy to send you a copy.
7.2 No Verbal Amendment
These Terms and Conditions may only be amended in a record, such an e-mail or writing duly authenticated by the party to be charged. None of our agents or customer service representatives are authorized to waive any or modify any provision of these Terms and Conditions, and any allegation that they have done so will be ineffective.
7.3 Superseding Effect
These Terms and Conditions supersede all prior terms of use, access, communications or proposals, whether electronic, oral or written, between you and us regarding access to our Domain or use of its Contents or services.
7.4 Governing Law
These Terms and Conditions will be governed by and interpreted under the laws of the State of California except only to the extent applicable consumer protection laws in your state of residence in the United States specifically supersede California law and require their application instead. The predominant purpose of this Terms and Conditions is providing services and licensing access to intellectual property and not a "sale of goods."
