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WWW.ALLOVER 30.COM User Agreement Effective Date: April 26th, 2006 Last Modified: July 16, 2007 I. Preliminary Provisions
A. Party Definitions and Introductory
Terms 1. The operative parties referred to in this Agreement are as follows: a. Us, the Publisher – eTech Marketing, Inc. (hereinafter “Publisher” or “We/Us”) is the owner, operator and publisher of the website located at http://www.allover30.com (hereinafter the “Site”). Hereinafter, when first-person pronouns are used in this Policy, (us, we, our, ours, etc.) they are referring to this entity and publisher of the applicable website. This entity may also be referred to as “Publisher” from this point forward. Additionally, when the terms “The Site” or “Site” are used, these terms refer to the aforementioned website. b. You, the User – As the user of this Site, this User Agreement will refer to the user as “You” or through any second-person pronouns, such as “Yours,” etc. Hereinafter, the user of the Site shall be referred to in applicable second-person pronouns. c. 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 in any way. You need not become a Member of the Site in order for this Agreement to govern your relationship with the Site. 2. 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 Site and Our Services. You
agree that such Consideration is both adequate, and that it is received upon your
viewing or downloading any portion of any of the Publisher’s website(s). B. What this Agreement is – This Agreement is a legal contract between You and the publisher of the Site. 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 in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this User 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 the Publisher. C. Electronic Signatures
/ Assent Required – Nobody is authorized to access
this Site unless they have signed this Agreement. Such signature does not need to be a physical
signature, since this Agreement is intended to be governed by the Electronic
Signatures in Global and National Commerce Act (E-Sign Act). You manifest Your agreement to this User
Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked 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 have not yet done so, You
must immediately click here to electronically sign this Agreement. If You fail to sign this Agreement, You understand that You
are an unauthorized user of the Site, despite any payments made or
subscriptions sold to You. Accessing the Site without agreeing to this
Agreement constitutes trespass and ‘hacking’ under federal law. No act or omission by the Publisher should be
interpreted as a waiver of the requirement that You assent to this User
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 Publisher’s services. However, if You fail to electronically sign
this Agreement, You stipulate to and agree to pay the Publisher $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 Attorney’s fees and
costs, incurred in collecting this unauthorized access fee from You. Nothing contained herein is intended to
affect or limit Publisher’s entitlement to injunctive, declaratory or other
relief under state or federal law. D. Revisions to this User Agreement: 1. From time to time, We
may revise this Agreement. We reserve
the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes
to this Agreement are in force and enforceable immediately upon posting. The updated or edited version supersedes any
prior versions immediately upon posting, and the prior version is of no
continuing legal effect unless the revised version specifically refers to the
prior version and keeps the prior version or portions thereof in effect. 2. We agree that if we change anything in this Agreement, we will change the “last modified date” at the top of this 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. 3. Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission 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. E. Access to the Site – You understand that all We are selling 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 fees that You incur to access our Site 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. II. Access Fees and User Status A. Access and limited license – All Users may access certain public areas of the Site. This User Agreement covers all public and non-public areas of the Site. 1. Subject to all of the User Agreement and recognizing that and Our Services, the Publisher grants You a limited, nonexclusive, nontransferable personal license to access and use the Site and the Materials contained therein. Publisher provides the Materials on this Site for the personal, non-commercial use by viewers, fans, visitors, subscribers and/or potential subscribers of said Site. Users of this Site are granted a single copy license to view Materials (on a single computer only). All Materials on the Site shall be for private, non-commercial use only, and all other uses are strictly prohibited. Publisher reserves the right to limit the amount of materials viewed. You agree to prevent any unauthorized copying of the Site, or any of the Materials contained therein. Any unauthorized use of the Site or any of the Materials contained therein terminates this limited license effective immediately. This is a license to use and access the Site for its intended purpose and is not a transfer of title. You will not copy or redistribute any of the content appearing on this Site. Publisher reserves the right to terminate this license at any time if You breach or violate any provision of this Agreement, in which case You will be obligated to immediately destroy any information or materials You have downloaded, printed or otherwise copied from this Site. Violators of this limited license may be prosecuted to the fullest extent under the applicable law. B. Fees for Members – Members are billed a monthly fee for unlimited access. Payment is to be by either check or accepted major credit card. You understand that if You become a Member, we employ an automatic re-bill procedure in order to provide continuity of service. 1. It is a condition of Membership that all of the information you provide during your signup process, and in any other interaction with Us, shall be correct, current, truthful, and complete. If You provide any false, misleading, incomplete, or otherwise incorrect information to Us, Your Membership is null and void. We have the right to terminate Your Membership at any time.
2. Membership may never be assigned, transferred, or sold to a third party. Membership is a single-user license. You are not authorized to share any of our Materials with any person who does not have their own membership. If you do so, both You and the unauthorized viewer/User are jointly and severally liable for any a-la-carte fees that will be due if there is no Membership discount in place for the unauthorized User. 3. Subscription fees are
non-refundable, and You are responsible for any credit card charge backs,
dishonored checks, and any related fees that We incur with respect to your
account. If You fail to reimburse Us for
any credit card chargebacks, dishonored checks, or related fees within 30 days
of our initial demand for reimbursement, You agree that You will pay Us $100 in
additional liquidated damages for each fee incurred.
C. Billing Errors. If You believe that You have been erroneously billed, please notify Us immediately of such error. If We do not hear from You within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by You for all purposes, including resolution of inquiries made by your credit card issuer. You release Us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to Us within thirty (30) days of its publication. III. Special Considerations Regarding
Minors A. Age of Majority. In order to use the Site or any services provided by the Publisher, 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 print or download any Materials from the Site whatsoever. 1. You were asked to verify your birth date on the Age Verification Page as a condition of entry onto the Site. This verification was requested pursuant to 28 U.S.C. §1746. Accordingly, if You provided incorrect information on the Age Verification Page, 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. 2. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age. 3. You represent and warrant that You will not allow any minor
access to this Site. 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. B. WE HAVE A ZERO
TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING
PEDOPHILES OR ANY PEDOPHILIC ACTIVITY. 1. You understand that all depictions of all persons on this
Site and in all Materials produced or published by the Publisher 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.
2. If You seek any form of child pornography (including
so-called “virtual” child pornography), you must exit this Site
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. 3. In order to further Our zero-tolerance policy, all Users
agree that You will report any images, real or simulated, that appear to depict
minors on our Site. If You see any
images or other depictions that are questionable, You agree to report these
images by emailing us at abuse@allover30.com. 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. 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. IV. Images and Content A. Our Site(s) contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other World Wide Website owned, operated, licensed, or controlled by the Publisher (collectively, “Materials”). B. 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. C. You acknowledge and understand that the Materials are erotic in nature – and that they 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 the Publisher and that you are not offended by such Materials, and that you access the Site freely, voluntarily, and willingly, and for your own personal enjoyment. D. If You are seeking information regarding any illegal activities, please leave this Site immediately. You acknowledge that you are aware of the community standards in your community, and You will only access the content on the Site if you believe that the content on the Site does not offend the community standards prevalent in Your community. E. You agree not to use or access the Site if doing so would violate the laws of Your state, province, or country. V. RESTRICTIONS ON USE OF SITE: A. You agree that You will only use the Site for purposes expressly permitted and contemplated by this User Agreement. You may not use the Site for any other purposes without Our express prior written consent. B. Without Our express prior written authorization, You may not: 1. Duplicate any part of the Site or the Materials contained therein (except as expressly provided elsewhere in this Agreement); 2. Create any derivative works based on the Site or any of the Materials contained therein, and You agree and stipulate that any and all derivative works are NOT “fair use”; 3. Use the Site 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”; 4. Re-distribute the Site or any of the Materials contained therein, and You hereby agree and stipulate that any and all such uses are NOT “fair use”; 5. Remove any copyright or other proprietary notices from the Site or any of the Materials contained therein;
6. Frame or utilize any framing techniques in connection with the Site or any of the Materials contained therein; 7. Use any meta-tags or any
other “hidden text” using the 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 the
Publisher is an infringement upon the Publisher’s 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.
8. “Deep-link” to any page of the Site (including the homepage), or avoid agreement to the Site’s Terms & Conditions; you may only link to the main entry page; 9. Circumvent any encryption or other security tools used anywhere on the Site (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); 10. Use any data mining, bots, or similar data gathering and extraction tools on the Site; 11. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law; 12. Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of Your rights to access and use the Materials as granted specifically by this Agreement; or 13. Bookmark any page of the Site beyond the registration log-in screen. C. You agree to cooperate with the Publisher in causing any
unauthorized use to cease immediately.
At any time, if the Publisher provides a service enabling users to share
information or communicate with other users, You agree not to publish,
disseminate, or submit any defamatory, or illegal material while using the Site
or other services included on the Site.
You are solely responsible for submitting any material that violates any
D. Interference. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of the Publisher’s 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. E. Stipulated Liquidated Damages – 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. 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. 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. VI. DISCLAIMER
OF
WARRANTY: A. You expressly agree that use of the Site 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 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. B. The Site and all materials contained therein are provided “as
is” without warranty of any kind, either express or implied, including but not
limited to, any implied warranties of merchantability, fitness for a particular
purpose, title, or non-infringement. C. Publisher makes no representations or warranties that the
Site or any materials contained therein will be uninterrupted, timely, secure,
or error free; nor does Publisher make any representations or warranties as to
the quality, suitability, truth, usefulness, accuracy, or completeness of the
Site or any of the materials contained therein.
D. You understand that Publisher cannot and
does not guarantee or warrant that files available for downloading from the
internet will be free of viruses, worms, Trojan horses, or other code that may
manifest contaminating or destructive properties. Publisher does not assume any
responsibility or risk for your use of the internet. E. Publisher makes no warranty regarding any
goods or services purchased or obtained through the Site or any transaction
entered into through the Site and is not responsible for any use of
confidential or private information by sellers or third parties. F. Publisher may change any of the
information found on this Site at any time without notice including this User
Agreement without notice. Site owner makes no commitment to update the
information found at this Site. Site makes no commitment to update the
materials. G. 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. VII. DISCLAIMER AND INDEMNIFICATION A. The provision of any services which is in violation of any laws is strictly prohibited. If We determine that You or any user has provided or intends to purchase or provide any services in violation of any law, your ability to use the Site will be terminated immediately. We do hereby disclaim any liability for damages that may arise from any user providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may arise for us should You violate any law. B. 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. C. Our Site 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 Site should you find it offensive. D. You agree to defend, indemnify, and hold harmless the Publisher, 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 or any of the Materials contained therein, or Your breach of any of this User Agreement. Publisher shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but are not obligated to do so. VIII. LIMITATION OF LIABILITY: A. In no event shall Publisher
(or its licensors, agents, suppliers, resellers, service providers, or any
other subscribers or suppliers) be liable to You, or any other third party for
any direct, special, indirect, incidental, consequential, exemplary, or
punitive damages, including without limitation, damages for loss of profits,
loss of information, business interruption, revenue, or goodwill, which may
arise from any person’s use, misuse, or inability to use the Site or any of the
materials contained therein, even if Publisher has been advised of the
probability of such damages. This is for any matter arising out of or relating
to this Agreement, whether such liability is asserted on the basis of contract,
tort or otherwise, even if Publisher has been advised of the possibility of
such damages. B. In no event shall Publisher’s
maximum total aggregate liability hereunder for direct damages exceed the total
fees actually paid by You for use of a Site or Site for a period of no more
than one (1) month from the accrual of the applicable cause or causes of
action. Because some jurisdictions
prohibit the exclusion or limitation of liability for consequential or incidental
damages, the above limitation may not apply to You. IX. LINKS AND LINKING:
A. Some websites which are linked to the Site are owned and operated by third parties. Because the Publisher has no control over such websites and resources, You acknowledge and agree that Publisher is not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources. B. You further acknowledge and agree that Publisher 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. C. Users further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by this Site’s User Agreement, Spam Policy, Webmaster Agreement, or Privacy Policy, which are incorporated into this Agreement by reference. D. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by the Publisher of such websites or the content, products, advertising, or other materials presented on such Site, but are for user's convenience. E. All users do
hereby agree to hold the Publisher harmless from any and all damages and
liability that may result from the use of links that may appear on the Site. The
Publisher reserves the right to terminate any link or linking program at
anytime. X. TRADEMARK INFORMATION: A. Allover30.com is a service mark and/or trademark wholly owned by the publisher and is considered to be a trademark owned by the Publisher. We aggressively defend our intellectual property rights. B. 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. The Publisher warrants that its use of any such marks is under license or by permission of the TM holder. C. All of the marks, logos, domains,
and trademarks that You find on the Site may not be used publicly except with
express written permission from Publisher, and may not be used in any manner
that is likely to cause confusion among consumers, or in any manner that
disparages or di XI. COPYRIGHT
INFORMATION: A. The Materials accessible from the Site, and any other World Wide Website owned, operated, licensed, or controlled by Publisher, is the Publisher’s proprietary information and valuable intellectual property and We retain all right, title, and interest in the Materials. The Site and its software are registered with the U.S. Copyright Office. B. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of Publisher, 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. C. Modification or use of the Content except as expressly provided in this User Agreement violates the Publisher’s intellectual property rights. D. Neither title nor intellectual property rights are transferred to You by access to the Site. E. 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 the Publisher
or its content suppliers and is protected by United States and international
copyright laws. The compilation of all Materials on the Site is the exclusive
property of the Publisher or its content suppliers and protected by XII. NOTICE OF CLAIMED INFRINGEMENT The Publisher
respects the intellectual property of others, and we ask our users to do the
same. We voluntarily observe and comply with the A. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; B. Description of the copyrighted work or other intellectual property that you claim has been infringed; C. A description of where the material that you claim is infringing is located on a Site; D. Your address, telephone number, and email address; E. A statement by You that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and F. A statement by You, made under penalty of perjury, that the above information in your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. G. You may send your
Notice of Claimed Infringement to: Weston, Garrou, DeWitt
& Walters Phone: (407) 975-9150 Fax: (407) 774-6151 Notice@DMCANotice.com Please do not sent other inquires or information to our Designated Agent. XIII. NOTICE AND TAKEDOWN PROCEDURES: The Publisher implements the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement: A. The Publisher reserves the right at any time to disable access to, or remove any material or activity accessible on or from the Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent. B. It is the firm policy of the Publisher to terminate the account of repeat copyright infringers, when appropriate, and the Publisher will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act (“DMCA”). The Publisher’s DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with Paragraph 19 and §512 of the DMCA, but does comply with three requirements for identifying Site that is infringing according to §512 of the DMCA, the Publisher shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements. C. When the Designated Agent receives a valid notice, the Publisher will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within 10-14 days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity. XIV. EXPORT CONTROL: A. 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 B. You will not assist or participate in any such diversion or other violation of applicable laws and regulations. C. 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. D. 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. XV. 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. XVI. NOTICE: A. Notice. Any
notice required to be given under this Agreement may be provided by email to a
functioning email address of the party to be noticed, by a general posting on
the Site, or personal delivery by commercial carrier such as Federal Express or
Airborne. Notices by customers to Publisher shall be given by electronic
messages unless otherwise specified in the Agreement. B. 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. C. When
Notice is Effective. Notices shall
be deemed effective upon delivery. Notices delivered by overnight carrier
(e.g., United States Express Mail or Federal Express) shall be deemed delivered
on the business day following mailing. Notices mailed by United States
Mail, postage prepaid, registered or certified with return receipt requested,
shall be deemed delivered five (5) days after mailing. Notices delivered
by any other method shall be deemed given upon receipt. Notices by email
and facsimile transmission, with confirmation from the transmitting machine
that the transmission was completed, are acceptable under this Agreement
provided that they are delivered one (1) hour after transmission if sent during
the recipient's business hours, or D. 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. XVII. COMMUNICATIONS NOT PRIVATE: Publisher does
not provide any facility for sending or receiving private or confidential electronic
communications. All messages transmitted to Publisher shall be deemed to be
readily accessible to the general public. Visitors should not use this Site to
transmit any communication for which the sender intends only the sender and the
intended recipient(s) to read. Notice is
hereby given that all messages entered into this Site can and may be read by
the agents and operators of this service, regardless of whether they are the
intended recipients of such messages. XVIII. FORCE MAJEURE: Publisher shall
not be responsible for any failure to perform due to unforeseen circumstances
or to causes beyond our reasonable control, including but not limited to: acts
of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other
natural disasters; war, riot, arson, embargoes, acts of civil or military
authority, or terrorism; fiber cuts; strikes, or shortages in transportation,
facilities, fuel, energy, labor or materials; failure of the telecommunications
or information services infrastructure; hacking, SPAM, or any failure of a
computer, server or software, including Y2K errors or omissions, for so long as
such event continues to delay the Site’s performance. XIX. GENERAL PROVISIONS: A. Governing Law. These
Terms of Use and all matters arising out of, or otherwise relating to, these
Terms and Conditions shall be governed by the laws of the State of B.
Rights to Injunctive Relief. Both
parties acknowledge that remedies at law may be inadequate to provide an
aggrieved party with full compensation in the event of the other party’s
breach, and that an aggrieved party shall therefore be entitled to seek
injunctive relief in the event of any such breach, in addition to seeking all
other remedies available at law or in equity. C. 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 D. The arbitrator shall be knowledgeable in Internet and e-Commerce disputes. Publisher reserves the right to voir dire any potential arbitrator to determine the arbitrator’s familiarity with Internet and e-Commerce disputes. Publisher also reserves the right to voir dire any potential arbitrator to determine if the arbitrator holds any prejudice or bias against adult entertainment or erotica in general. The Publisher shall have the right to disqualify any arbitrator that, in the Publisher’s sole opinion, does not have the requisite knowledge or that harbors any prejudice toward the Publisher’s Materials, content, or expressive activity. E. 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. F. 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. G. 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. H. 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 an aggrieved party shall therefore be entitled to seek
injunctive relief in the event of any such breach, in addition to seeking all
other remedies available at law or in equity. I. 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. J. 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. K. 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. L. Complaints – The Complaint Assistance Unit of the
Division of Consumer Services of the Department of Consumer Affairs may be
contacted in writing at 1020 N. Street, #501, M. No Waiver. No
waiver or action made by the Publisher 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. N.
Headings. All headings are
solely for the convenience of reference and shall not affect the meaning,
construction or effect of this User Agreement.
O. Complete
Agreement. This User Agreement
constitutes the entire agreement between the parties with respect to Your
access and use of the Site and the Materials contained therein, and your Membership
with the Site, and supersede and replace all prior understandings or
agreements, written or oral, regarding such subject matter. P. Other Jurisdictions. Publisher makes no representation that the Site or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site from such locations do on their own initiative and are solely responsible for determining compliance with all applicable local laws. XX. ELECTRONIC SIGNATURES: This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (E-SIGN Act”). By submitting the “Registration Form,” User thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained herein. IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act. _/s/______________________ eTech Marketing, Inc. _/s/________________________ User This document was prepared by Lawrence G. Walters, Esq., of www.FirstAmendment.com. |
18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement
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