TERMS & CONDITIONS | USER AGREEMENT
Effective Date: February 18, 20161. PRELIMINARY PROVISIONS
1.1. Introductory Terms:
1.1.2. Date-Check.com is a social networking website focused on the dating field. We provide a wide variety of services to ensure that those participating in dating, networking, or socializing activities can do so with some degree of confidence and safety. No website can eliminate all risks associated with human interaction, and Date-Check.com should not be relied upon for that purpose. Our services are provided to members for recreational, entertainment, and informational purposes only. Ultimately, You are responsible for your own safety and security.
1.1.3. Through these Terms and Conditions, We are placing legal conditions on Your use of this Site and making certain promises to You. You must agree to all of the conditions in this Agreement. You do not need to use Our Site, therefore if You do not wish to be bound by each and every provision in this Agreement, then You are not welcome to use this Site and should leave and use another service. If You do not understand all of the terms in this Agreement, then You should consult with a lawyer before using the Site.
1.2. Party Definitions - The operative parties referred to in this user Agreement are defined as follows:
www.Date-Check.com. Hereinafter, MNH, LLC d/b/a www.Date-Check.com shallbe referred to as “Date Check” or the “Publisher.” When first-person pronouns are used in this Policy, (Us, We, Our, Ours, etc.) these provisions are referring to Date Check d/b/a www.Date-Check.com or as any other site that we may choose to publish in the future. Additionally, when the terms “The Site” or “Site” are used, these terms refer to any website published by Us, unless a site is specifically exempt from this policy. Our Site(s), and the services the Site provides (”Services”), may contain images and content, including but not limited to text, software, images,
1.2.1. MNH, LLC is the publisher and operator of www.Date-Check.com, graphics, data, messages, or any other information, and any other website content owned, operated, licensed, or controlled by the Us (collectively, “Materials”).
1.2.2. You, the User - As the user of this Site and/or Services, this policy will refer to the user as “You” or through any second-person pronouns, such as “Yours,” etc. Hereinafter, the User of the Site and/or Services shall be referred to in applicable second-person pronouns. You certify that you are over 18 years of age.
1.2.3. User vs. Member - For the purposes of this Agreement, all Members are Users, but not all Users are Members. This Agreement applies to all Users whether they are Members or not. You become a User by accessing this Site or Service in any way. You need not become a Member of the Site to make this Agreement apply to You. You become a Member upon approval by Us after submitting a membership application via the Site. The Site includes Client Members and Entertainer Members which may be collectively referred to as “Members” unless distinctly noted as a Client Member or Entertainer Member within this Agreement.
1.3. What this Agreement is - This Agreement is a legal contract between You and Us. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the Site or Service in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site and any other Services provided by Us.
1.4. Consideration - Consideration for Your assent to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Site and Services. You agree that such Consideration is both adequate, and that it is received upon Your viewing or using any portion of any of Our Site(s) and/or Services.
1.5. Electronic Signatures / Assent Required:
1.5.1. Nobody is authorized to access this Site or use the Services unless they have signed this Agreement. Such signature does not need to be a physical signature, since electronic acceptance of this Agreement is permitted by the Electronic Signatures in Global and National Commerce Act (E-Sign Act) and similar federal and state laws. You manifest Your agreement to this Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked or will click a button containing the words “I agree” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You click any link, button, or other device provided to You in any part of Our Website’s interface, then you have legally agreed to all of these Terms and Conditions. Additionally, by using any of Our Site or Services in any manner, including uploading Your Content to Our Site, You understand and agree that We will consider such use as Your affirmation of Your complete and unconditional acceptance to all of the terms in this Agreement.
1.5.2. If You fail to electronically sign, or otherwise agree to this Agreement, You understand that You are an unauthorized user of the Site and Service, despite any payments made or services provided to You. No act or omission by Us should be interpreted as a waiver of the requirement that You assent to this Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Our Services. However, if You fail to electronically sign this Agreement, You stipulate to and agree to pay Us $250 each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including all fees and costs, incurred in collecting this unauthorized access fee from You.
1.6. If You are seeking information regarding any illegal activities, please leave this Site immediately and do not attempt to use the Services. You acknowledge that You are aware of the community standards in your community, and You will only access the content on the Site and/or use the Services if You believe that the content on the Site does not offend the community standards prevalent in Your community.
1.7. You agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or country.
1.8. Revisions to this User Agreement:
1.8.1. From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. Any updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.
1.8.2. We agree that if We change anything in this Agreement, We will change the “last modified date” at the top of this Agreement so that it is immediately obvious that We have updated the Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed, and that you need to re-review it in order to determine how Your rights and responsibilities may have been affected by the revisions.
1.8.3. Waiver – By failing to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such failure and You agree such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
1.9. Incorporations by Reference – Although this Agreement represents the primary terms and conditions of service for the Date Check network of websites, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
2. ACCESS to Our Site & Services:
2.1. All Users may access certain public areas of the Site. You understand that all We areselling You is access to Our Services as We provide them from time to time. You need to provide Your own access to the Internet, and any Internet access or other fees that You incur to access Our Site and use Our Services are Your sole responsibility. We are not providing any hardware nor software to You – and You need to purchase or license the necessary hardware and software to access the Site and Services. This Agreement covers all public and non-public areas of the Site.
2.2. 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. In order to verify your identity or reputation, some of this information may be personal, private or detailed. In connection with completing the online registration form, You agree to provide true, accurate, current and complete information about Yourself as prompted by the registration form (such information being the "Registration Data"); and You further agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while You are a Member. While we use reasonable efforts to protect the personal information of others from inadvertent release or misappropriation, we are not responsible for the intentional or criminal acts of third parties such as hackers or “phishers.”
2.3. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and changes in Your credit card used in connection with billing and/or payment for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your account. If You fail to reimburse Us for any credit card chargebacks, dishonored checks, or related fees within thirty (30) days of Our initial demand for reimbursement, You agree to pay Us one hundred dollars ($100) in additional liquidated damages as well as any costs incurred by Us for each fee incurred.
2.4. Subject to Your acceptance of this Agreement, We grant You a limited, nonexclusive, nontransferable personal license to access and use the Site, Materials, and the Services contained therein. We provide the Materials and Services on this Site for the personal, non-commercial use by Users of the Site. Users of this Site are granted a single copy license to view Materials (on a single computer only).
2.5. All Materials and Services available on the Site shall be for private non-commercial use only, and all other uses are strictly prohibited. We reserve 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 will not copy or redistribute any of the content appearing on this Site. We reserve 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.
2.6. You are entirely responsible for any and all activities conducted through Your account. You agree to notify Us immediately of any unauthorized use of Your password or accounts as well as of any other breach of security.
2.7. Service Interruption: From time to time due to technological factors, scheduled software uploads and other factors beyond Our control, service may be temporarily interrupted. From time to time certain features of the Site, such as the Site’s email system, may not be available for use due to technological and other factors. From time to time, access to the Site and the ability to log into the Site may not be available due to technological and other factors. You agree to hold Us harmless against any such interruption of service.
2.8. Agreement to Receive Notifications and Other Communications: We reserve the right to send electronic mail or other messages to You and to other Members. You understand and agree that even unsolicited commercial email sent from Us or Our affiliates is not SPAM as that term is defined under the law. The purpose of this communication may include but is not limited to:
2.8.1. Inform You of any change to the status Your membership;
2.8.2. Inform You of Member communication;
2.8.3. Provide information to You regarding products or services offered by Our affiliates or partners;
2.8.4. Inform You about any of Our related products or services;
2.8.5. Provide You with information about any item that We think, in Our sole discretion, may be of interest to You.
2.9. License to Your Content – By uploading media content and/or entering text onto the Site (“Your Content”), You agree to give Us and all of Our Users irrevocable nonexclusive royalty-free rights to use Your Content for any purpose, including publication, display, modification, and creation of derivative works. We have the right to license any of Your Content up until the time You remove the content from the Site. Please see Section 4 below, for additional information governing Our license to use Your Content.
3. Membership to Our Site & Services:
3.1. Membership may not be transferred or sold to a third party. The Site and its affiliatesdisclaim any 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 actions under applicable federal, state, and international laws.
3.2. Acceptance of Membership - Membership at the Site is limited and based on a background check and strict adherence to our membership criteria. Submission of an application and payment of membership fees do not guarantee admission as a member of the Site; either as a Client Member or Entertainer Member. You acknowledge that membership decisions are completely discretionary on the part of the Site, and that applicants can be rejected for any reason, or no reason whatsoever.
3.3. Membership Levels
3.3.1. The Site utilizes varying levels of Membership based on whether You are an entertainer or a client seeking to contact an entertainer. Membership levels are fully described in the Site’s FAQ, which is hereby incorporated by reference and forms an indispensable part of this Agreement. The Frequently Asked Questions may be found at: http://www.Date-Check.com/using-date-check.
3.3.2. As described in this Agreement, there may be circumstances, seen or unforeseen, in which the Site ceases to function or in which You or We terminate Your Membership. Furthermore, We are not liable for any damage to You in the event that the Site or Services cease to exist.
3.4. Purchases: Purchases are not retractable or refundable except in exceptional circumstances such as, but not limited to, when the seller/advertiser materially changes the services description after Your purchase or a clear typographical error is made. By using this Site and/or purchasing services offered herein, You are warranting and certifying that You are eighteen (18) years of age or older and have the legal right to purchase such services. Failure to remit payment will result in Your suspension and/or termination from the Site.
3.5. Termination of Access/Membership:
3.5.1. Your account and/or access to the Site and Our Services may be terminated at any time, with or without cause, in our discretion. Without limiting other remedies, the Site may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate Your use of the Site and refuse to provide Our Services to You, with or without advance notice, if: (a) the Site believes that You have breached any material term of this Agreement or the documents it incorporates by reference; (b) We are unable to verify or authenticate any information You provide to Us; (c) if We believe, in Our discretion, that Your actions may cause legal liability for You, Our Users or Us; or (d) if the Site decides to cease operations or to otherwise discontinue any part of the Site or Services. Further, you agree that neither the Site nor any third party acting on Our behalf shall be liable to You for any termination of Your access to any part of the Site. The Site has no interest in arranging sexual activity between Members. This activity is illegal in most areas of the United States, and using Our Site for that purpose constitutes a material breach of this Agreement and may be criminal in nature. Members that are reported as using the Site to arrange sexual activity will be immediately terminated from using the Site.
3.5.2. You agree that neither Us nor any third party acting on Our behalf shall be liable to You for any termination of Your Membership or access to the Site or Services. You agree that if Your account is terminated by Us, You will not attempt to re-register as a Member - using the same or different username - without prior written consent from Us.
4. License To Use Your Information and Content:
4.1. With the exception of personal financial and billing information, You hereby grant to Us the perpetual, unlimited, royalty-free, world-wide, non-exclusive, irrevocable, transferable license to run, display, copy, reproduce, publish, bundle, distribute, market, create derivative works of, adapt, translate, transmit, arrange, modify, sub-license, export, merge, transfer, loan, rent, lease, assign, share, outsource, host, make available to any person or otherwise use, any text, images, data, video or other information and content You provide on or through this Site or which is sent to Us or others by text, e-mail or other correspondence, for any purpose whatsoever. We shall not be subject to any obligations of confidentiality regarding any such information unless specifically agreed by Us in writing or required by law.
4.2. By uploading any photographs of Yourself or others, You hereby swear that You own or control all intellectual property and publicity rights with respect to the uploaded images; and You hereby irrevocably grant a non-exclusive right and license to Us to:
4.2.1. Reproduce, transmit, communicate, display, or distribute Your submitted photographs, on or as part of Our Sites, on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
4.2.2. Reproduce Your Content in digital form (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hyperlinks);
4.2.3. Adapt, modify, or alter Your photographs or otherwise create derivative works based upon Your photographs; and for all other reasonable promotional or commercial uses either as part of the operation of Our Sites, or as a promotion or operation of any derivative or related businesses.
4.3. Updating Photos: Members may upload new images to the Site at no charge every three (3) months. You are permitted to upload six (6) images with each new upload. This complimentary upload includes an additional one (1) month of membership to the Site. If You wish to upload new images before Your next complimentary upload date, You will incur a service fee of ten dollars ($10.00). For additional information regarding Your photos and photo updates, please visit here.
4.4. You are not permitted to add watermarks, graphic overlays or other text to Your Content. Any image that You upload and which contains a watermark, text, or other graphic overlay will be removed. To assist You with preventing infringement of Your Content, You may request that We add a watermark containing www.Date-Check.com to Your Content. However, no adaptation, modification, or alteration of Your Content shall be construed as Our claiming ownership of or assuming any responsibility for Your Content. For additional guidelines pertaining to Your Content, please visit: http://www.Date-Check.com/using-date-check.
4.5. You agree that Your Content shall comply with all provisions set forth in this Agreement and any additional guidelines or regulations We deem necessary.
5. IMAGES & CONTENT
5.1. Our Site(s) and Services contain images and content, including but not limited to text,software, images, graphics, data, messages, or any other information, and any other website owned, operated, licensed, or controlled by Us.
5.2. You acknowledge and stipulate that all of the Materials are expressive content that is fully protected by the First Amendment to the United States Constitution.
5.3. You acknowledge and understand that some or all of the Materials on Our site and transmitted via Our Services may be erotic in nature – and that they may contain graphic visual or textual depictions of sexual activity and nudity, graphic audio portions of the same kind of content, and textual descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by or through the Site and that You are not offended by such Materials, and that You access the Site and Services freely, voluntarily, and willingly, and for Your own personal enjoyment.
5.4. You understand that all of the information, data, text, images, audio, graphics, video, messages, or any other content on the Site or available via the Service, whether posted publicly or transmitted privately through Our messaging Services or the messaging services of third parties, are the sole responsibility of the party from whom the content originated. This means that You are entirely responsible for any and all content that You upload, post, transmit, e-mail, message, or otherwise publish via Our Services. We are not obligated do not control the content posted on the User profiles or contained in User communications, and as such We do not guarantee any accuracy, integrity, quality, or any other aspect of such posted content. You agree that by using the Site and Services covered by this Agreement, You very well may be exposed to content that You might find offensive, indecent, problematic, or otherwise objectionable. Under no circumstances will we accept liability in any way for any content posted by, uploaded by or transmitted by Our Users.
5.5. We respect the intellectual property rights of all parties, and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act. Copies of Our Repeat Infringer Policy are available on request to our Members.
5.6. Section 230 Notice:
5.6.1. You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material. You agree not to allow minors to view any such content, and You agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors' access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services at websites such as: www.getnetwise.org or http://www.child-internet-safety.com/internet_filters.php, among others. Please note that We make no representation or warranty regarding any of the products or services referenced on such sites, and We recommend that You conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing Our Site or the content received via Our Services if Your computer or mobile device can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site or Services from being displayed or accessed by Your children or wards.
5.6.2. Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that We operate as an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication or transmission of Your content as well as the content of other users and third parties. We do not create such content, and We are not responsible for the publication of remarks or communications of third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Us to remove or block any content found to be offensive, defamatory, obscene or otherwise violative of our policies, without impacting Our status as an interactive computer service. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this User Agreement between You and Us.
6. SPECIAL CONSIDERATIONS REGARDING MINORS
6.1. Age of Majority. In order to use the Site or any provided Services, You must have attained the age of majority in Your jurisdiction. 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 use the Services in any manner.
6.1.1. You may be asked to verify Your birth date on an age verification form or device, as a condition of entry onto the Site, pursuant to 28 U.S.C. § 1746. Accordingly, if you provide false information to Us, You committed an act of perjury, this perjury was recorded, and this perjury may be used against You in any court proceeding or other tribunal of any kind.
6.1.2. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age.
6.1.3. You represent and warrant that You will not allow any minor access to this Site or Services. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help users to limit minors’ access to harmful material. You acknowledge that if Your computer or mobile device can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by minors. You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to keep Our erotic content from being displayed to Your children or wards.
6.2. WE HAVE A ZERO TOLERANCE POLICY FOR PORNOGRAPHIC MATERIAL INVOLVING MINORS AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY.
6.2.1. You understand that all depictions of all persons on this Site and in all Materials produced or published by Us are of persons over the age of 18 as of the date of the production of the depiction. We take great measures to ensure that no underage models appear in any of Our Materials.
6.2.2. If You seek any form of pornographic materials involving minors (including “virtual” pornography involving minors), You must exit this Site and cease using Our Services immediately. We do not provide this kind of material and We do not tolerate those who provide this kind of material nor do We tolerate consumers of this kind of material.
6.2.4. 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.
6.2.5. 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 a reporting service such as ASACP.org: http://www.asacp.org, or the N.C.M.E.C. CyberTip Hotline: https://report.cybertip.org/index.htm.
6.2.6. Our Site has adopted a firm stance against Human Trafficking. For more information on the detection and reporting of human trafficking victims, please see our Human Trafficking Resource Page, here;
7. RESTRICTIONS ON USE OF OUR SITE AND SERVICES:
7.1. You agree that You will only use the Site and Services for purposes expresslypermitted and contemplated by this User Agreement. You may not use the Site and Services for any other purposes, including commercial purposes, without Our express prior written consent.
7.2. Without Our express prior written authorization, You may not:
7.2.1. Duplicate any part of Our Site or the Materials contained therein or received via the Services (except as expressly provided elsewhere in this Agreement);
7.2.2. Create any derivative works based on Our Site or any of the Materials contained therein or received via the Services, and You agree and stipulate that any and all derivative works are NOT “fair use”;
7.2.3. Use Our Site or Services, or any of the Materials contained therein, for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT “fair use”;
7.2.4. Re-distribute Our Site or any of the Materials contained therein or received through the Services, and You hereby agree and stipulate that any and all such uses are NOT “fair use”;
7.2.5. Remove any copyright or other proprietary notices from Our Site or any of the Materials contained therein;
7.2.6. Frame or utilize any framing techniques in connection with Our Site or any of the Materials contained therein;
7.2.7. Use any meta-tags or any other “hidden text” using Our Site’s name or marks, and You hereby stipulate that any use of the Site’s name or marks, or any other marks owned by Us is an infringement upon Our trademark rights, and You stipulate to liquidated damages of $5000 per such infringement, plus You agree to pay any and all fees incurred in the recovery of this amount, including attorney’s fees and all associated costs;
7.2.8. Avoid agreement to the Site’s Terms & Conditions; You may only link to the main entry page;
7.2.9. Circumvent any encryption or other security tools used anywhere on the Site or in conjunction with the Services (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of the Site);
7.2.10. Use any data mining, bots, or similar data gathering and extraction tools on the Site or in conjunction with the Services;
7.2.11. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials or Services except and only to the extent permitted by applicable law;
7.2.12. 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 Services or any of Your rights to access and use the Materials or Services as granted specifically by this Agreement;
7.2.13. Bookmark any page of the Site beyond the registration log-in screen or home page;
7.2.14. Use Our Services for any commercial purpose unless expressly agreed to by Us in writing and at Our sole discretion. Without such consent by Us, Your use of the Site and Services is strictly for personal use.
7.2.15. Use Our Services to send any message or content to any other User or person that may be viewed as defamatory, vulgar, threatening, unlawful, abusive, tortious, invasive of that person’s privacy, or racially, ethnically, or otherwise objectionable.
7.2.16. Use Our Services to impersonate any other User or person.
7.2.17. Attempt to disguise Your identity as the originator of any message or content You submit through Our Services.
7.2.18. Send any content which may be deemed as unsolicited or commercial advertising, including but not limited to sending spam, promotional material, and any other form of solicitation.
7.2.19. Use the Service in connection with unlawful contests, lotteries, or gambling; pyramid schemes, chain letters, junk email, spamming or any duplicative or unsolicited messages (commercial or otherwise).
7.2.20. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
7.2.21. Publish, post, upload, distribute, traffic or disseminate any defamatory, obscene, or otherwise unlawful content, such as child pornography.
7.2.22. Publish, post, upload, distribute or disseminate any topic, name, material or information that incites discrimination, hate or violence towards one person or a group because of their belonging to a race, a religion or a nation.
7.2.23. Upload, or otherwise make available files or products that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless You own or control the rights thereto or have received all necessary consents to do same.
7.2.24. Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
7.2.25. Upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s property.
7.2.26. Use meta tag searches on the site.
7.2.27. Download any file posted by another user of a Service that you know, or reasonably should know, cannot be legally distributed in such manner.
7.2.28. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
7.2.29. Restrict or inhibit any other user from using and enjoying the Services.
7.2.30. Violate any code of conduct or other guidelines which may be applicable for any particular Service.
7.2.31. Harvest or otherwise collect information about others, including e-mail addresses.
7.2.32. Use the site to facilitate, promote, or engage in, any form of human trafficking.
7.2.33. Violate any applicable laws, policies, or regulations.
7.2.34. Create a false identity for the purpose of misleading others. Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden. You agree to fully comply with the United States Federal Trade Commission (“FTC”) statutes and regulations (if You do business in the United States or with United States based customers), and any related rules, policies, and advisory opinions issued by the FTC.
7.2.35. Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or other user or usage information or any portion thereof.
7.2.36. Transmit defamatory, obscene, child pornographic, harassing, illegal, or otherwise objectionable content (in Our discretion) via Our Services.
7.2.37. Promote or facilitate illegal activity, or violates the rights of others such as copyright, trademark, other intellectual property infringement, right to privacy, right to publicity, or other similar rights.
7.3. Restrictions on User Posted Media:
7.3.1. We do not permit visual media, including images, video and other depictions, which contain nudity involving display of the genital area, or any form of sexual activity or conduct. All persons depicted in Your Content, images or video must be at least 18 years of age when the depiction was created.
7.3.2. While We do not take a position with regard to the legality of such depictions, We will delete, disable or otherwise remove such content, when discovered, based on internal business considerations.
7.3.3. The depictions covered by the above-referenced laws include, but are not limited to, depictions of actual or simulated sexual activity, including lascivious depictions of the genitals or pubic area of any person; simulated or actual masturbation; expressions of sexual arousal; sexual intercourse; actual or simulated depiction of pain or restraint in a sexual manner; penetration of a sexual organ or anus by any object or body part, oral sex, BDSM, bestiality, and the like.
7.3.4. We reserve the right to review and/or reject any content created and/or posted by the User and we may delete any profiles without warning, although the Site undertakes no obligation to monitor user content or take any such actions. We encourage Our Members to report any violations of these restrictions by other Members. Uploading prohibited depictions violates this Agreement, and may result in suspension or cancellation of Your account.
7.3.5. You agree to cooperate with Us in causing any unauthorized use to cease immediately. 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 of Your rights under this Agreement. Nothing contained in this User Agreement shall obligate Us to monitor or investigate any use of Our Services by our users or other third parties, other than as required by applicable law.
7.4. Since We rely on information provided by third parties in making this designation, We specifically disclaim any liability for inaccuracy or incompleteness of such information. Client Members and Entertainer Members are encouraged to verify any claims relating to reputation for themselves, and to utilize information provided by the Site only as a starting point in their evaluation.
7.5. Interference. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of Our Materials or any other Materials from Our Site. User hereby agrees not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it. If You do not adhere to this provision of this Agreement, You hereby stipulate to and agree to pay liquidated damages of $5000 plus any and all fees associated with recovery of these damages, including attorney’s fees and costs.
8. STIPULATED LIQUIDATED DAMAGES:
8.1. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
8.2. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of $100 per occurrence. You specifically agree to pay this $100 in liquidated damages.
8.3. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
9. DISCLAIMER OF WARRANTY:
9.1. You expressly agree that use of the Site and Services, or any of the Materials contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site and Services or any of the materials contained therein is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.
9.2. The Site and Services, and all materials contained therein, are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.
9.3. We make no representations or warranties that the Site and Services, or any materials contained therein, will be uninterrupted, timely, secure, or error free; nor do We make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site and Services or any of the materials contained therein.
9.4. You understand that We cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. We do not assume any responsibility or risk for Your use of the Internet.
9.5. We make no warranty regarding any goods or services purchased or obtained through the Site and/or Services or any transaction entered into through the Site and/or Services, and We are not responsible for any use of confidential or private information by sellers or third parties.
9.6. We make no warranty or representation regarding the safety, security, or integrity of any personal information You provide to Us. While we take reasonable steps to protect the integrity of our stored data, no security system is foolproof. Therefore, You release us from any claims arising from a breach of security and/or theft of your personal information.
9.7. The warranties and representations set forth in this Agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person.
10. DISCLAIMER & INDEMNIFICATION:
10.1. The provision of any services which is in violation of any laws is strictly prohibited. IfWe 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 and Services will be terminated immediately without any reimbursement of any payment You may have made to Us. 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 for Us should You violate any law.
10.2. You also 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.
10.3. Our Site and Services contains material that may be offensive to third parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material and You agree to immediately cease review of the Site and use of the Services should you find them offensive.
10.4. You agree to defend, indemnify, and hold harmless Date Check, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your, or You under another person’s authority including without limitation to governmental agencies, use, misuse, or inability to use the Site, Services, or any of the Materials contained therein, or Your breach of any of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at our own expense, and choose our own legal counsel, but are not obligated to do so.
11. This Service is for Amusement Purposes.
11.1. You understand and accept that Our Site and Services, while built in the form of a personals service, is an entertainment and recreational service. All profiles are provided for the amusement and entertainment of Our Members and Our Users. You are not guaranteed that You will find a date, companion, or activity partner, or that You will meet any of Our members in person.
11.2. You understand and accept that when You attempt to contact other Users from the Site, these Users may find amusement in your profile or communications. You understand and accept that no communications between You and other Users is private, even if the Member profile to which you respond is created by Us. You hereby specifically release Us and all other Members from any liability for invasion of privacy, defamation, publicity, false light, and related torts, in the event that Your communications or profile are made public – even if they are made public for the sole purpose of amusing others at Your expense. Nothing contained in this section is intended to limit the scope of releases and / or indemnification contained elsewhere in this Agreement.
11.3. We cannot ensure that any of Our Users will actually complete a transaction. The Site uses good faith efforts to verify the identity and reputation of its Users based on reasonable investigation. Even if the Site verifies the identity or reputation of a particular User, it is merely relying on information provided by third parties, which may be inaccurate, incomplete or dated. Therefore, we specifically disclaim any and all liability associated with transactions, purchases or meetings arising from the information or recommendations provided by the Site. You hereby release the Site, and its representatives, from any and all liability associated with verification of the identity and reputation of the Site’s Users. As with all commercial transactions, we encourage the buyer to beware.
11.4. Any User accessing Our Site in an effort to engage in or facilitate illegal or tortious activities shall have their Membership and/or access to the Site and the Services subject to immediate cancellation, and may be reported to the appropriate law enforcement agency.
11.5. You understand, acknowledge, and agree that some of the User profiles posted on this site may be fictitious. You understand, acknowledge, and agree that the information, text, and pictures contained in these profiles do not pertain to any actual person, but are included for entertainment purposes only. Nothing contained in any of the aforementioned profiles are intended to describe or resemble any real person - living or dead. Any similarity between these profile descriptions and any person is purely coincidental.
11.6. We do not endorse, confirm, support, verify or validate the accuracy or the reliability of any of the information posted by Members on this Site. This includes but is not limited to all text, photographs, pictures, and any other content. We conduct no background check or criminal history evaluation of Our Members before or after they post profiles on our Site. You are encouraged to thoroughly inspect the credentials and background of any person You meet using Our Site or Services.
11.7. You explicitly, expressly, and totally understand and agree that We assume no liability or responsibility, financial, or otherwise for the truthfulness, accuracy, intent, motives, or behavior of anyone on this Site or any of its affiliate sites. You meet people on this Site and on affiliate sites at Your own risk. People use the Internet for various motives and intentions. It is Your responsibility and solely Your responsibility to verify the accuracy, truthfulness, good intentions, and motives of anyone that You meet on this Site. We are not responsible and are not liable for any aspect of any conversations, contact, or other information exchanged between Members online or offline.
11.8. It is Your responsibility to properly investigate the background, personality, criminal history, financial condition, or any other relevant factor affecting Your potential compatibility with any other Member or User, prior to communicating with, or meeting such person. Most importantly, USE COMMON SENSE! Do not provide any personal information to individuals who can misuse that information to Your detriment. While the Site and Services may provide a venue for the exchange of information, ideas and emotion, they do not act as a guarantor of the accuracy of such information, and all Users/Members are encouraged to approach the veracity of any communications occurring on the Site and Services with a healthy skepticism.
11.9. Fraud and Scam Warning: The Site specifically and emphatically warns Members never to send money to anyone that they meet on the Site. The Site has no way of determining the validity of any communication that You receive from another Member or the validity of the person behind such communication. It is a violation of Site’s policy to solicit money from or to send money to any Member on the Site. It is the responsibility of each Member to inform Us of any request made by another Member for money or any correspondence received from another Member involving a financial transaction. While We are not obligated to investigate any such report, We may do so in Our sole discretion.
11.9.2. YOU EXPRESSLY AGREE AND CERTIFY THAT YOU WILL NOT SEND MONEY OR TRANSFER ANY FINANCIAL ASSETS TO ANYONE THAT YOU MEET ON THIS SITE. YOU WILL NOT PARTICIPATE IN ANY MONEY TRANSFER ARRANGEMENT ORGANIZED BY ANYONE THAT YOU MEET THROUGH THIS SITE OR ANY OF ITS AFFILIATED SITES OR ANY LINKS ASSOCIATED WITH EITHER THIS SITE OR ITS AFFILIATES. YOU WILL IMMEDIATELY REPORT ANY REQUEST FOR MONEY TRANSFERS AND REQUESTS FOR FINANCIAL ASSISTANCE TO THE SITE ADMINISTRATOR.
11.10. You hereby discharge, acquit, and otherwise release Company, its parent company, its agents, employees, officers, directors, shareholders, attorneys, and affiliates, from any and all allegations, counts, charges, debts, causes of action, and claims relating in any way to the use of, or activities relating to the use of the Site and Services including, but not limited to claims relating to the following:
11.10.1. Sexual Harassment, Negligence, Gross Negligence, Reckless Conduct, Alienation of Affections (to the extent recognized in any jurisdiction), Intentional Infliction of Emotional Distress, Intentional Interference with Contract or Advantageous Business Relationship, Defamation, Privacy, Publicity, Intellectual Property, Statutory Rape, Misrepresentation, any financial loss not due to the fault of the Site, missed meetings, unmet expectations, false identities, fraudulent acts by others, invasion of privacy, release of personal information, failed transactions, purchases or functionality of the Site, unavailability of the Site, its functions and/or services and any other technical failure that may result in inaccessibility to the Site, or any claim based on Vicarious Liability for Torts committed by individuals met on or through the Site and Services, including but not limited to fraud, theft or misuse of personal information, assault, battery, stalking, rape, theft, cheating, perjury, manslaughter, or murder.
11.10.2. The above list is intended to be illustrative only, and not exhaustive of the types or categories of claims released by You. This release is intended by the parties to be interpreted broadly in favor of Us, and thus any ambiguity shall be interpreted in a manner providing release of the broadest claims. This release is intended to be a full release of claims, and the parties acknowledge the legally binding nature of this provision, and the nature of the rights given up in connection therewith.
12. LIMITATION OF LIABILITY:
12.1. In no event shall We (or our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person’s use, misuse, or inability to use the Site, Services, or any of the materials contained therein, even if We have been advised of the probability of such damages. This is for any matter arising out of or relating to this Agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if We have been advised of the possibility of such damages.
12.2. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of the Site or Services for a period of no more than one (1) month from the accrual of the applicable cause or causes of action or $10.00, whichever is greater. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
13. LINKS & LINKING:
13.1. Some websites which are linked to the Site are owned and operated by third parties, such as links to advertisements and/or independent referral services. Because We have no control over such websites and resources, You acknowledge and agree that We are not responsible or liable for the availability of such external websites or resources, and do not screen or endorse them, and are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
13.2. You further acknowledge and agree that We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
13.4. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by Us of such websites or the content, products, advertising, or other materials presented on such Site, but are for Your convenience.
13.5. You hereby agree to hold Us harmless from any and all damages and liability that may result from the use of links that may appear on the Site or via the Services. We reserve the right to terminate any link or linking program at any time.
14. TRADEMARK INFORMATION:
14.1. “Date Check,” datecheck.com, date-check.com, datecheck.net, and Date-Check.com are service marks and/or trademarks of the Site and Services. The name of the Site and the name of Date Check are considered trademarks or service marks owned by Us. We aggressively defend Our intellectual property rights. DATE CHECK® is a registered service mark owned by Us.
14.2. Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
14.3. All of the marks, logos, domains, and trademarks that You find on the Site and Services may not be used publicly except with express written permission from Us, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Us.
15. COPYRIGHT INFORMATION:
15.1. The Materials accessible from the Site, Services, and any other World Wide Website owned, operated, licensed, or controlled by Us are Our proprietary information and valuable intellectual property and We retain all right, title, and interest in the Materials.
15.2. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without Our prior written consent, 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.
15.3. Modification or use of the Materials except as expressly provided in this User Agreement violates Our intellectual property rights.
15.4. Neither title nor intellectual property rights are transferred to You by access to the Site and Services.
15.5. All Materials included on the Site, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the property of Date Check 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 Date Check or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations.
15.6. To access Our Notice and Takedown Policy and associated DMCA procedures, please refer to: www.Date-Check.com/legal/DMCA-Info.pdf.
16. DEFAMATION & INVASIVE MATERIAL POLICY
16.1. We provide an interactive computer service, and thus We have no liability for user-posted content due to Section 230 of the CDA. Nevertheless, we recognize that despite this protection, there may occasionally be content posted by Our Users that is unappreciated by the subject of the User-posted content. It is not Our intention to cause anguish to any person nor harm to any entity, nor to allow through inaction such harm to occur. Accordingly, it is Our policy to respond respectfully to any complaints about User-posted content, or about content that We might have provided.
16.2. If You feel damaged by any User-posted content, or content provided by Us, We will, in Our discretion, take reasonable measures to comply with any reasonable requests. Therefore, We have instituted this policy.
16.3. You agree that if You have any complaint about any content on Our Website, including (but not limited to) a complaint or claim of defamation (libel or slander), invasion of privacy, false light, trademark infringement, right of publicity claims, or any related or similar tort (from which We are otherwise immune from liability), that You will provide notice to Us by mail or fax to:
Charles A. Cook, Esq.
Morrison Mahoney LLP
250 Summer Street Boston, MA 02210-1181
16.4. You agree that We shall have ten (10) business days after RECEIPT of said notice to evaluate Your concerns.
16.5. After evaluating Your concerns, We will either inform You that We do not believe Your concern is valid, or We will request Your preference regarding an opportunity to cure Your concerns. This cure may, in Our discretion, include one of the following:
16.5.1. We may offer to delete the offending material.
16.5.2. We may offer to modify the offending material.
16.5.3. We may offer You the opportunity to publish a rebuttal to the offending material.
16.5.4. We may engage You and seek any other alternative resolution that will mitigate Your damaged legal interests – whether or not We are legally required to do so.
16.5.5. We may provide You with some or all identifying information We may have about the actual culprit (if the content was User-posted), but We are under no obligation to do so, and expressly reserve the right not to.
16.6. You acknowledge and agree that upon transmission of Your complaint to Us, You will be considered to have engaged in settlement discussions with Us, and neither party will initiate formal legal action while non-adversarial resolution is in progress. You agree that You will not file suit unless and until We issue a statement to You that We have taken Our final action, and that no further action will be taken without adversarial proceedings. At that point, You may proceed with arbitration as provided for under this Agreement.
16.7. You acknowledge that once You accept any of Our offers of non-adversarial resolution, that You irrevocably waive any and all possible claims for any allegedly offending material on Our Website and that if You do bring any action against Us that You hereby stipulate that You will bear Your own costs and fees incurred in the action, regardless of the outcome of that action, and that You stipulate that Your damages will be limited to one dollar ($1), and no more, and that You hereby acknowledge that such amount of one dollar ($1) is sufficient and adequate.
16.8. You understand that no part of this Agreement obligates Us to go beyond that required by law, and this Agreement is in place for Your convenience. If We believe that Your requests are unreasonable, We reserve every right to terminate discussions with or file suit against You to recover any legal fees incurred due to harassing or unreasonable requests. You acknowledge and agree that neither We, nor our agents, employees or attorneys, bear any responsibility for any misdirected, lost, filtered, blocked or failed communications. Nothing contained in this section shall obligate Us to undertake any specific action with regard to a given complaint, and We reserve all rights relating to resolution of disputes of this nature.
17. EXPORT CONTROL:
17.1. You understand and acknowledge that the software elements of the Materials on the Site may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States’ or international law is prohibited.
17.2. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
17.3. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that You will abide by such laws and regulations.
17.4. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
18. NO AGENCY RELATIONSHIP:
Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
19.1. 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 Federal Express or DHL. Notices by customers to Us shall be given by electronic messages unless otherwise specified in the Agreement.
19.2. Change of Address. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
19.3. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
19.4. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
20. COMMUNICATIONS NOT PRIVATE:
We do not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Us shall be deemed to be readily accessible to the general public. Visitors should not use this Site or Services 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 or Services can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.
21. FORCE MAJEURE: We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s or Services’ performance.
22. JURISDICTION & DISPUTE RESOLUTION:
22.1. Governing Law. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation permitted under this Agreement must be, without exception, initiated in Orange County, Florida.
22.1.1. All Parties to this Agreement agree that all litigation permitted under this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.
22.1.2. The parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.
22.1.3. The parties agree to exclusive venue in, and only in, Orange County, Florida.
22.1.4. The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.
22.1.5. All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any litigation permitted under this Agreement
22.1.6. All parties stipulate that the state and federal courts located in Orange County, Florida shall have personal jurisdiction over them for the purpose of any litigation permitted under this Agreement that is not otherwise subject to the arbitration provisions, infra.
22.1.7. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
22.1.8. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
22.1.9. Right to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that in any litigation permitted under this Agreement, an aggrieved party shall therefore be entitled to seek injunctive relief, in addition to seeking all other remedies available at law or in equity.
22.2. ARBITRATION PROVISIONS:
22.2.1. If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party must submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims by Us under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other injunctive or equitable relief. The arbitration shall be conducted in Seminole County, Florida and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes.
22.2.2. The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this User Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
22.2.3. No waiver of right to arbitration -- There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
22.2.4. The First Amendment applies to arbitration proceedings -- Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
23. MISCELLANEOUS PROVISIONS:
23.1. Attorney’s Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.
23.2. 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.
23.3. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this User Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this User Agreement will continue in full force and effect.
23.4. Complaints – California Residents: The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/about_dca/contactus.shtml.
23.5. No Waiver. No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this User Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this User Agreement.
23.6. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this User Agreement.
23.7. Complete Agreement. This User Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Site, Services and the Materials contained therein, and your use of the Site and Services, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
23.8. Other Jurisdictions. We make no representation that the Site, Services or any of the Materials contained therein are appropriate or available for use in other locations outside the Site’s principal place of business, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site and Services from such locations do on their own initiative and are solely responsible for determining compliance with all applicable local laws.
All Rights Reserved. © MNH, LLC (2016). Nothing more follows.