Effective Date: 10/01/16
Last Modified Date: 12/8/16
Welcome to our Dating Kinky's Terms of Service (hereinafter "ToS" of "Agreement"). The provisions of this Agreement will govern your use of our website, and you should therefore take some time to read it carefully.
Dating Kinky contains advertisements, communications and links posted by independent third parties, over which we exert no control. We do not get involved in any disputes that may develop between our advertisers and others, and we do not facilitate communication between third parties. Therefore, you are urged to use your own good judgment and common sense when responding to such advertisements, as we are not responsible for any interactions occurring between our Users and our advertisers. Federal law protects sites like ours from civil claims, so we encourage you to independently research any information found in our Advertisements, before making any decisions. We hope that you thoroughly enjoy Dating Kinky, and anticipate that you will find our site useful and informative. Should you have any questions or comments regarding our website, or its policies, please feel free to contact us by clicking the "Contact Us" link at the bottom of this page.
1.2. Additionally, through the use of these Terms of Service, we are placing legal conditions on your use of this website (www.datingkinky.com, hereinafter the "Website"), and making certain promises to you.
1.3.1. "We," are the service provider of www.datingkinky.com and various other websites (collectively referred to as our "Network"). It should be obvious, but for the sake of legal clarity, when this Agreement uses first-person pronouns such as "us," "we," "our," "ours," etc., those first-person pronouns are referring to us as the service provider for www.datingkinky.com.
1.3.2. "You," the User - As a User of this Website, this Agreement will refer to the User as "You" or through any second-person pronouns, such as "Yours," etc. Hereinafter, the User of the Website shall be referred to in applicable second-person pronouns.
1.3.3. When the term "Website" is used in this set of ToS's, it means www.datingkinky.com. unless the Agreement specifically says otherwise.
1.4. Consideration - Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Website and Our Services. You agree that such Consideration is both adequate, and that it is received upon Your viewing or downloading any portion of Our Website.
1.5. Our first condition is that you must agree to all of the conditions in this set of Terms of Service of use. You do not need to use our Website, therefore if you do not wish to be bound by each and every provision in this Agreement, then you are not welcome to use this Website and should leave and use another service.
1.6. You may not unilaterally disregard any portion of this Agreement. However, if there is a particular portion of this Agreement that You wish to avoid, You may contact Us to negotiate a separate agreement BEFORE You use the Website. We do not guarantee that such negotiations will be successful. Nevertheless, if you wish to discuss your own personalized Agreement, please contact us or have your attorney do so.
1.7. If you do not understand all of the terms in this Website, then you should consult with a lawyer before using the Website.
1.8. This Website is for adults only. If You are under the age of eighteen (18), You are not to use this Website at all.
1.9.1. From time to time, We may revise this Agreement. We reserve the right to do so, and You specifically agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect.
1.9.2. If We change anything in this Agreement, We will change the "Last Modified Date" at the top of this Agreement. You agree to re-visit this web page on a weekly basis, and to use the 'refresh' button on Your browser when doing so. Upon each visit, You agree to note the date of the last revision to this Agreement. If the "Last Modified Date" date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the "last modified" date has changed, then You can be certain that something in the Agreement has been changed, and You agree that You will re-review the Agreement in its entirety and that You will agree to its terms or immediately cease use of any Websites in Our Network.
1.9.3. Waiver - if You fail to re-review this Agreement as required to determine if any of the terms have changed, You assume all responsibility for such omissions and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
2.2. How You can and will demonstrate Your affirmative acceptance of all of the terms in this Agreement:
2.2.1. 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 ToS's; or
2.2.2. By using any of Our services in any manner, You understand and agree that We will consider any use of Our Website as Your affirmation of Your complete and unconditional acceptance of all of the terms in this Agreement.
3.1. The Website provides a forum through which adults may seek and establish personal contact with one another through the use of the Website's capabilities for displaying photographs and written materials provided by its members. The Website contains images and content, including but not limited to text, images, messages, and other information. All Materials displayed on the Website are protected by the First Amendment rights to Free Speech, Free Expression, Freedom of Association and Freedom of the Press, and parallel provisions of state constitutions. The Website is dedicated to assisting like-minded individuals locate, and communicate with, each other. We are not responsible for the content of communications, statements, opinions, posting or other information placed on the Website by third parties, via any discussion board, forum, or public area of the Website. Such information is intended to be protected by the immunity provided by Section 230 of the Communications Decency Act ("CDA") which immunizes this Website, and its agents and employees, from any claims relating to the content of information posted by third parties. We do not act as a censor of such material. You acknowledge that the Website may offer online content that could be deemed "adult," "offensive," or "erotic" in nature. While We may choose to remove content that is identified as illegal, is stolen, or which violates Our policies, We do not edit, review, or change posts made by third parties prior to the information appearing online.
3.2. We do not provide advice, screening, background checks, warranties, guarantees, or information about members. All information about members is provided by the members themselves.
3.3. We do not accept responsibility for any information provided by Our members. You understand that member-provided information may be inaccurate, false, or incomplete. By using the Website, You understand and accept that information presented in other members' profiles may be false, misleading, inaccurate, or incomplete, and that the Website has no responsibility or control over verifying member-provided information.
3.4. The Website does not pre-approve any of its members or Users based on identity, location, physical appearance, or relationship status, prior to their use of the Website. 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 may misuse that information to Your detriment. While the Website provides a venue for the exchange of information, ideas and emotion, it does 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 Website with a healthy skepticism.
3.5. In light of the above, You hereby discharge, acquit, and otherwise release the Website, its parent corporation, 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 Website including, but not limited to claims relating to the following:
3.5.1. Sexual Harassment, Copyright Infringement, 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, Statutory Rape, Invasion of Privacy, and Misrepresentation or any claim based on Vicarious Liability for Torts committed by individuals met on or through the Website, including but not limited to fraud, assault, battery, stalking, rape, theft, cheating, perjury, manslaughter, or murder.
3.5.2. 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 the Website, 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.
3.6. You acknowledge that You are aware of the nature of the Materials and content on Our Website, that You are not offended by such Materials and that You access the Website freely, voluntarily and willingly. You also acknowledge that this Website is intended to contain only images protected by the First Amendment to the United States Constitution. If You are seeking information regarding illegal activities, please leave this Website immediately. You are further aware of the community standards of Your community, and You will only access the content on the Website if you believe, upon diligent investigation, that the content on the Website does not offend the community standards prevalent in Your community. You further agree not to use or access the Website if doing so would violate the laws of Your state, province or country.
4.1. Age of Majority: You represent and warrant You are at least 18 years of age, and that You have the legal capacity to enter into this Agreement. If you are not at least 18 years of age, You must exit the Website immediately and may not use or access the Website or print or download any Materials from Our Website. You may be asked to verify Your birth date on the Birth Date Verifier(TM) form as a condition of entry onto the Website, pursuant to 28 U.S.C. §1746. You agree not to bypass any security and/or access feature on this Website. Additionally, the Website does not assume any responsibility or liability for any misrepresentations regarding a user's age.
4.2. Membership: Membership may not be assigned, transferred, or sold to a third party. The Website and its affiliates disclaim any and all liability arising from fraudulent entry and use of the Website. If a user fraudulently obtains access, the Website may terminate membership immediately and take all necessary and appropriate actions under applicable federal, state, and international laws.
4.3. No Illegal Conduct Allowed: You will not use the Website in any manner inconsistent with any applicable laws or regulations. You may not include any personally-identifying information such as phone numbers, street addresses, Web site addresses, email addresses, Instant Messenger screen names, or any other information that if provided may be used to circumvent the Website's communication capabilities. You may not use the Website to advertise products or services, nor may You use the Website in order to solicit products or services, unless otherwise permitted by datingkinky.com.
4.4. Email: A key component of the services provided by the Website is email communication sent from Us or through Us to You. By initiating membership, You specifically and explicitly agree to accept, and You consent to receiving commercial and personal email messages sent from Us or sent by other members through Our services. These messages may include emails from other members seeking contact, emails from the Website, emails from the Website regarding potential matches, and emails from the Website regarding promotions, events, and other commercial enterprises that may be part of the services provided by the Website or that constitute advertisements of other services provided by the Website or its parent corporation, subsidiaries, or partners.
4.5. You specifically agree to accept all bulk commercial email that may be sent by the Website, its principals, Affiliates, assigns, successors, parent company, or other persons or corporations acting in conjunction with Us. If You commence membership You are hereby deemed to be engaging in a business relationship with Us. Such business relationships shall permit Us to send You unsolicited email for the purpose of promoting services provided by Our Website or other services as may be offered from time to time by the Website, its parent corporation, subsidiaries, or partners. Cancellation of Your account or other business relationships with Us shall not be deemed to terminate Our relationship with You with respect to the provision of unsolicited commercial email. This business relationship is specifically deemed to continue indefinitely until explicitly terminated by You.
4.6.1. Provide true, accurate, current and complete information about Yourself as prompted by the registration form (such information being the "Registration Data"); and
4.6.2. Maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while You are a member. You must promptly inform Website of all changes, including, but not limited to, changes in Your email address.
4.7. If you provide any information that is untrue, inaccurate, not current or incomplete, or Website or any of its authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Website has the right to suspend or terminate Your account and refuse any and all current or future use of the Website, as well as subjecting You to criminal and civil liability.
4.8. In connection with completing the online registration form, You agree NOT to register a person other than Yourself, without that person's written permission. If You register a third party without their written consent, You stipulate to liquidated damages of $50,000.00 per such violation, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys' fees and all associated costs. We expressly reserve the right, and You stipulate, that We may assign the rights to sue for these liquidated damages to any third party claiming injury by such violation.
4.9. Member Account, Password, and Security: As part of the registration process, You will be issued a unique user name and password which You must provide in order to gain access to the non-public portion of the Website. You certify that when asked to choose a username You will not choose a name which may falsely represent You as somebody else or a name which may otherwise be in violation of the rights of a third party.
4.9.1. We reserve the right to disallow the use of usernames that We, at Our sole discretion, deem inappropriate. We reserve the right to cancel, at any time, the membership of any member who uses their selected username in violation of these Terms of Service or in any other way We, in Our sole discretion, deem inappropriate.
4.9.2. Your membership, user ID, and password are nontransferable and non-assignable.
4.9.3. You represent and warrant that You will not disclose Your unique user name and password to any other person and that You will not provide access to the Website to anyone who is below the age of majority in Your state, province, or country, or who otherwise is not eligible to view the content on the Website.
4.9.4. You are solely responsible for maintaining the confidentiality of Your user name and password and are fully responsible for all activities that occur under Your user name and password. Our Website will not release Your password for security reasons.
22.214.171.124. Notify the Website of any unauthorized use of Your user name and password or any other breach of security using the "Support" link at the bottom of this page."
126.96.36.199.Ensure that You exit from Your account at the end of each session. You are liable and responsible for any unauthorized use of the Website until you notify the Website by email regarding that unauthorized use. Unauthorized access to the Website is illegal and a breach of this Agreement. You indemnify the Website against all activities conducted through Your account.
5.1. Age of Majority. In order to use the Website or any services provided by Us, You must have attained the age of majority in your jurisdiction. You represent and warrant that You are at least eighteen (18) or twenty-one (21) years of age, depending on the age of majority in Your jurisdiction, and that You have the legal capacity to enter into this Agreement.
5.1.1. You were asked to verify Your birth date on the join form as a condition of entry onto certain areas of the Website containing adult content, pursuant to 28 U.S.C. § 1746. Accordingly, if You provided incorrect information on the join) page, You committed an act of perjury, this perjury was recorded, and this perjury may (and will) be used against You in any court proceeding or other tribunal of any kind.
5.1.2. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User's age.
5.1.3. You represent and warrant that You will not allow any minor access to this Website. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help Users to limit minors' access to harmful material. You acknowledge that if Your computer can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by minors. You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to keep Our erotic content from being displayed to Your children or wards.
5.2. WE HAVE A ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES, PEDERASTS OR ANY PEDOPHILIC, PEDERASTIC, OR SIMILAR RELATED ACTIVITY.
5.2.1. All depictions of all persons on Our Website are of persons over the age of eighteen (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.
5.2.2. If You seek any form of child pornography (including so-called "virtual" child pornography), You must exit this Website 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.
5.2.3. In order to further Our zero-tolerance policy, You agree to report any images which You have reason to believe depict minors on Our Website by clicking the 'Support' link at the bottom of this page.
5.2.4. Include with Your report any appropriate evidence, including the date and time of identification. All reports will be investigated and the appropriate action will be taken based upon Our reasonable ability to verify the evidence provided.
5.2.5. 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 http://www.asacp.org.
6.1. Our Website contains images and content, including but not limited to text, software, images, graphics, data, messages, and other information (collectively, "Materials").
6.2. 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.
6.3. You acknowledge and understand that some of the Materials are user genrated and may contain graphic visual depictions of sexual activity and nudity, graphic audio portions of the same kind of content, and descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by Our Website and that You are not offended by such Materials, and to the contrary, that You are accessing this Website specifically because You enjoy such expressive content and You wish to view such Materials. You stipulate that you access this Website freely, voluntarily, and willingly, and for Your own personal enjoyment.
6.4. You agree not to use or access the Website if doing so would violate the laws of Your state, province, or country.
6.5. In the event that any court finds that any third party communication or third party content on Our Website falls outside of the realm of Section 230 of the Communications Decency Act ("CDA"), this shall not be deemed to be a waiver of any legal protections provided by CDA§ 230 for any and all other content posted on Our Website.
6.6. We reserve the right to remove content that: contains genitalia in your avatar or primary photos (genitalia includes breasts vaginal, labial, penile, scrotum and anal areas), or any photos that are not protected from free sharing wihtin a locked or password protected photo album.
7.1. You agree that You will only use the Website for purposes expressly permitted and contemplated by this Agreement. You may not use the Website for any other purposes without Our express prior written consent.
7.2. Without Our express prior written authorization, You may not:
7.2.1. Duplicate any part of the Webite or the materials contained therein (except as expressly provided elsewhere in this Agreement);
7.2.2. Redistribute or create any derivative works based on the Website or any of the materials contained therein. You agree that any such use is NOT "fair use";
7.2.3. Use the Website or any of the materials contained therein for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT "fair use";
7.2.4. Remove any copyright or other proprietary notices from the Website or any of the Materials contained therein;
7.2.5. Circumvent any encryption or other security tools used anywhere on the Website (including the theft of user names and passwords or using another person's user name and password in order to gain access to a restricted area of the Website);
7.3. Acceptable Use Policy: You agree and understand that Our Website permits You to use Our services in order to post content and to communicate with other Users. We are entitled to investigate and terminate Your membership if You have misused the Website, or behaved in a way which could be regarded as inappropriate, unlawful, or illegal. The following is a partial, but not exhaustive, list of the types of actions that are illegal or prohibited under this Agreement.
7.3.1. Unlawful, harmful, threatening, abusive, harassing, defamatory, invasive of another's privacy or right to publicity, or harmful to minors in any way, shape, or form;
7.3.2. Posting content or information that might be considered to be impersonating another person or legal entity;
7.3.3. Any posts with personally identifying information about another person without that person's prior explicit consent;
7.3.4. Posting content or information that constitutes SPAM or bulk posting of commercial advertisements for commercial interests;
7.3.5. Posting content or information that infringes upon any trademark, copyright, or other intellectual property rights of any party;
7.3.6. You also agree to immediately cease and desist from any contact with any person who so requests such cessation;
7.3.7. You will not "stalk" or otherwise harass any person, and if any member or other person requests that You cease communications with them, at any time, for any reason, You will immediately comply with said request. Further, You stipulate to liquidated damages of $50,000.00 per such violation, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys' fees and all associated costs. We expressly reserve the right, and You stipulate, that We may assign the rights to sue for these liquidated damages to any third party, including the party stalked or otherwise harassed by such violation.
7.3.8. You will not post on this Website any private information such as address, phone number or any other private identifying information, about anyone other than Yourself, without first obtaining that person's written consent. Further, You stipulate to liquidated damages of $50,000.00 per such violation, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys' fees and all associated costs. We expressly reserve the right, and You stipulate, that We may assign the rights to sue for these liquidated damages to any third party, including the party claiming injury by such violation.
7.3.9. You agree that You will not use Our services in order to collect any personal data about other Users;
7.3.10. You agree that You will not use Our services in order to conduct any illegal activities at all;
7.3.11. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive child pornography in any way;
7.3.12. You will not use Your profile or any other portion of the Website or Our services to promote any other business enterprise, unless otherwise permitted by datingkinky.com, nor will you attempt to use any of Our services to promote an escort service, prostitution, web-cams, or any other form of related enterprise;
7.3.13. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way;
7.3.14. You agree that You will not use Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive drugs or other illegal substances in any way;
7.3.15. You will not impersonate any person or entity, and will accurately represent Your gender in Your profile communications;
7.4. SPAM Prohibition: You agree not to use any facilities or capabilities of the Website to solicit the performance of any activity that is prohibited by the CAN-SPAM Act dealing with illegal distribution of unsolicited commercial bulk e-mail ("UCBE"), commonly known as "spam," nor shall members forge or use without authorization any mail header information from any source. Members agree to the Website's Spam Policy which is hereby incorporated by reference. Any breach of the Website's Spam Policy will result in immediate termination of Your account, and the immediate provision of Your identity and contact information to the Federal Trade Commission and any other applicable law enforcement agencies.
8.1. If We determine that You or any User has used Our services in violation of any law, Your ability to use the Website may be terminated immediately and We have every right to voluntarily cooperate with law enforcement or private aggrieved parties that We may be legally compelled to do so. We hereby disclaim any liability for damages that may arise from any User providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may arise for Us should You violate any law.
8.2. You also agree to defend and indemnify Us should any third party be harmed by Your actions or should We be obligated to defend any claims including, without limitation, any criminal or civil action brought by any party.
8.3. Our Website 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 cease review of the Website should You find it offensive.
8.4. You agree to defend, indemnify, and hold harmless our company, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your (or You under another person's authority - including without limitation to governmental agencies) use, misuse, or inability to use the Website or any of the Materials contained therein, or Your breach of any part of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at Our own expense, and choose Our own legal counsel; however, We are not obligated to do so.
8.5. 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, through the Website, as an interactive computer service provider. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication of third-party content (including third-party User content), appearing on the Website. We do not create such content, and We are not responsible for the publication or remarks 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 any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our status as a computer service provider. Nothing contained in this paragraph is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act.
9.1. datingkinky.com and the aforementioned name of the Website are Our service mark(s) and/or trademark(s).
9.2. Other companies' 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.
9.3. Copyright - This Website belongs to Us, and we either own or have rights to display all of the materials thereupon. You may not use any of Our materials without Our express written consent.
9.4. Photographs - In order to promote Your profile, You may upload photographs of Yourself. The content of these pictures may be at Your discretion, as long as they do not violate any of the other terms of this Agreement. However, datingkinky.com reserves the right to reject any image, at any time, for any reason.
9.4.1. By uploading any photographs of Yourself, You hereby swear that You own or control all intellectual property rights with respect to the uploaded photographs; and,
9.4.2. You hereby irrevocably grant a non-exclusive right and license to the Website to:
188.8.131.52.Reproduce, Transmit, communicate, display, or distribute the photographs, on or as part of the Website, on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
184.108.40.206.Reproduce Your pictures in digital form of display on the Internet (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hypertext links);
220.127.116.11.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 the Website, or as a promotion or operation of any derivative or related businesses.
10.1. In no event shall We (or Our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person's use, misuse, or inability to use the Website 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.
10.2. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of a Website for a period of no more than one (1) month from the accrual of the applicable cause or causes of action. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
11.1. 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.
11.2. If you feel damaged by any User-posted content, or content provided by Us, We agree to take reasonable measures to comply with any reasonable requests. Even if You are a public official, public figure, or libel-proof person, We do care about Your feelings and reputation. Therefore, We have instituted this Policy.
11.3. 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, that You will provide notice to Us by mail to:
P.O. Box 4583
Garner, NC 27529
11.4. You agree that We shall have ten (10) business days after RECEIPT of said notice to evaluate Your concerns.
11.5. 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 include one of the following:
11.5.1. We may offer to delete the offending material.
11.5.2. We may offer to modify the offending material.
11.5.3. We may offer You the opportunity to publish a rebuttal to the offending material.
11.5.4. We will 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.
11.5.5. 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.
11.6. 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.
11.7. 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 $1, and no more, and that You hereby acknowledge that such amount of $1 is sufficient and adequate.
11.8. 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.
12.1. Voluntary: Closing your account voluntarily is accomplished by visiting your edit profile page, scroll the the bottom and delete your account.
12.2. Involuntary: Without limiting other remedies, the Website may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate Your access and use of the Website and refuse to provide Our services to You at any time, with or without advance notice, if:
12.2.1. We believe that You have breached any material term of these Terms of Service or the documents it incorporates by reference;
12.2.2. We are unable to verify or authenticate any information You provide to Us;
12.2.3. We believe that Your actions may cause legal liability for You, Our Users or Us; or
12.2.4. We decide to cease operations or to otherwise discontinue any services or options provided by the Website or parts thereof.
12.3. Further, You agree that neither the Website nor any third party acting on Our behalf shall be liable to Your for any termination of Your membership or access to the Website.
12.4. You agree that if Your account is terminated by Us, You will not attempt to re-register as a member of the Website without prior written consent from Us.
12.5. Cancellation of Your account or other business relationships with Us shall not be deemed to terminate Our relationship with You with respect to the provision of unsolicited commercial e-mail. This business relationship is specifically deemed to continue indefinitely until explicitly terminated by You, by following the automated procedure specified in section of 12.1 of this document.
13.1. 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 North Carolina, excluding its conflict of law provisions. The sum of this paragraph is that any and all disputes must be, without exception, brought to court and litigated in Wake County, North Carolina.
13.1.1. All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Wake County, North Carolina.
13.1.2. The parties agree to exclusive jurisdiction in, and only in, Wake County, North Carolina.
13.1.3. The parties agree to exclusive venue in, and only in, Wake County, North Carolina.
13.1.4. 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.
13.1.5. 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 proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
13.1.6. All parties stipulate that the state and federal courts located in Wake County, North Carolina shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.
13.1.7. 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.
13.1.8. 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.
13.2. Binding Arbitration. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims under applicable worker's compensation law, unemployment insurance claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Wake County, North Carolina, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this 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.
13.3. 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 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.
13.4. 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.
13.5. 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.
13.6. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
13.7. Attorneys' Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the Terms of Service of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys' fees and costs incurred in connection therewith, including attorneys' fees incurred on appeal.
13.8. Complaints - North Carolina Residents: You may file a complaint with the North Carolina Department of Justice.
13.9. No Waiver. No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
13.10. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
13.11. Complete Agreement. This Agreement constitutes the entire Agreement between the parties with respect to Your access and use of the Website and the Materials contained therein, and Your Membership with the Website, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
13.12. Other Jurisdictions. We make no representation that the Website or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Website from such locations do so on their own initiative and are solely responsible for determining compliance with all applicable local laws.
14.1. 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.
14.2. 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 $5,000.00 per occurrence. You specifically agree to pay this $5,000.00 in liquidated damages.
14.3. For any breach of this Agreement resulting in liquidated damages owed by You, You specifically agree and We expressly reserve the right to assign Our rights to these liquidated damages to a third party.
14.4. 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.