This document was prepared by Lawrence G. Walters, Esq., of Weston, Garrou, DeWitt & Walters., and www.FirstAmendment.com. © 2006.
- PRELIMINARY PROVISIONS:
- Party Definitions and Introductory Terms -
- The operative parties referred to in this Agreement are as follows:
- Us, the Publisher - ExSitu Marketing, Inc., is the publisher of the website located at http://www.fetishfish.com, (the "Site" or "Our Site"), containing a variety of online services ("Our Services"). 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.
- You, the User - As the User of this Site, this Terms of Service Agreement will refer to the User as "You" or through any second-person pronouns, such as "Your," or any derivation thereof. Hereinafter, the User of the Site shall be referred to in applicable second-person pronouns; or, alternatively
- You, the Webmaster - As a Webmaster who submits his/her website for review by the Publisher, this Terms of Service Agreement will refer to the Webmaster as “Webmaster” or, in affiliated contexts, through second-person pronouns as outlined in ¶ I(A)(1)(b), above. A Webmaster is also, under the terms of this Agreement, subject to all conditions applicable to Users.
- Consideration - Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to:
- The User - in the form of allowing the User to access Our Site and utilize Our Services.
- The Webmaster – in the form of consenting to Publisher’s review of your website, and, consequently, consent to posting of Publisher’s review and rating(s), and the opening of such review to User comments. Additional consideration is provided in the form of publicity, promotion and visibility generated by the Publisher’s website reviews.
You agree that such Consideration is adequate, and that it is received upon the User viewing or downloading any portion of any of the Publisher's website(s), and/or the Webmaster consenting to the review of its website(s).
- What This Agreement Is - This Agreement is a legal contract between You and the Publisher. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. A User accessing the Site in any manner, affirmatively agrees to be bound by all of the terms contained in this Terms of Service Agreement. Alternatively, a Webmaster consenting to Publisher's review and rating(s), affirmatively agrees to all other actions described in §I(A)(2), above. 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/or any other services provided by the Publisher. Once access to the site is granted, agreement to all terms contained herein will be presumed.
- Electronic Signatures / Assent Required - No one is authorized to access this Site unless they have manifested their assent to this Agreement. Physical signatures are not necessary, 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 Terms of Service Agreement by taking any act demonstrating Your assent thereto. Most likely, You will click a button containing the words "I agree" or some similar syntax. You should understand that this action has the same legal effect as You placing Your physical signature on any other legal contract.
If You fail to sign this Agreement, You understand that You are an unauthorized user of the Site, despite any payments or other consideration made by You. No act or omission by the Publisher should be interpreted as a waiver of the requirement that You assent to this Terms of Service 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 $250.00 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 Attorneys' fees and costs, incurred in collecting this unauthorized access fee from You.
- Revisions to this Terms of Service Agreement
- 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.
- 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.
- 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 and obligations.
- Access to the Site - You understand that all We are providing 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 and/or submit material for review.
- USER AND WEBMASTER STATUS:
- User Access and Limited License - All Users may access certain public areas of the Site. This Terms of Service Agreement covers all public and non-public areas of the Site.
- Subject to all of the Terms of Service Agreement, 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, 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.
- In conjunction with § V of this Agreement, Users possess the privilege of reviewing the written reviews and ratings of Webmasters submitting their Sites for Publisher's critical, impartial review. Moreover, Users are provided with the opportunity to post comments on each, respectively reviewed website. In order to retain such privileges, each User agrees to refrain from the following conduct:
Users should use caution and good judgment when leaving comments about a removed Site.
- Posting content or items on inappropriate areas of the Site;
- Posting false, inaccurate, misleading, defamatory, obscene, child pornographic or libelous content including but not limited to, personal information;
- Taking any action that may undermine the Publisher’s ratings system (such as displaying, importing or exporting review/ratings information off-Site or for other uses unrelated to this Site);
- Distributing or posting of SPAM, chain letters, or other business schemes;
- Distributing viruses or other technologies that may harm the Site or the interests of Site Users or Webmasters;
- Copying, modifying or distributing content in violation of the Site’s copyrights and/or trademarks;
- Harvesting or collecting information about Users without their explicit consent;
- Using language that is racist, hateful or extortionate, as determined exclusively by Publisher; and
- Posting threats of physical harm.
Users could be held legally responsible for damages to a reviewed website if a court were to find that the remarks constitute libel or defamation. Pursuant to the terms of this Agreement, and under federal law, (Communications Decency Act §230), because Publisher does not censor comments or investigate them for accuracy, Publisher is not legally responsible for the remarks that Users post, even if those remarks are defamatory. However, neither this Agreement nor federal law protect the User who leaves the comments from legal responsibility for the content of such communications.
Many of these Site prohibitions are discussed in further detail herein. If the User retains any uncertainty regarding the nature of these terms, he/she has the affirmative obligation to immediately contact the Site administrator for any required clarification of rights and responsibilities under this Agreement.
- Webmaster Access - You agree that the Site and its services are provided at the discretion of the Publisher. Any Webmaster submitting his/her site for review agrees to the following conditions:
- The Publisher retains the unlimited and unfettered
right to take screenshots of any reviewed
Webmaster's site including, but not limited
to, the reviewed site's tour/member areas.
In other words, the Webmaster grants Publisher
a non-exclusive, royalty-free, irrevocable
right to exercise the copyright and publicity
rights, as well as access to the reviewed
website and use of the reviewed website's
resources. Webmaster stipulates his/her
understanding that such rights are required
in order for the Publisher to review, host
and display Your content.
- The Webmaster submitting a site for Publisher's review implicitly agrees to the posting of Publisher's review and rating 'as is.' Further, Webmaster agrees that said review and rating will be published 'live' by the Webmaster on his/her site without regard to Publisher's determined score.
- The Webmaster submitting a site for Publisher's review must be the recognized owner or owner's designee to the reviewed site.
- Any site submitting itself for review by the Publisher must not contain any content considered illegal under applicable local, state or federal laws, and as further provided throughout the terms of the instant Terms of Service Agreement.
- Any site submitting itself for review by the Publisher must be a legal site, and must not violate any local, state or federal laws including, but not limited to applicable copyright and trademark laws. Such legal obligations are further provided through the terms of the instant Terms of Service Agreement.
- No agency, partnership, joint venture, employee-employer or franchise or franchise relationship is intended or created by this Agreement.
- Abuse or Violation of Access, Use & Review of Provisions - Without limitation to other remedies, We may limit, suspend, or terminate Our services and use of the Site, prohibit access to the Site, remove hosted content, and take technical and legal steps to keep Users and/or Webmasters off the Site if We feel they have violated any provisions of this Agreement, or any other agreement promulgated by the Site. Such violations include, but are not limited to, creating general problems, perceived legal liabilities, or actions believed inconsistent with the letter and/or spirit of Our Site's Policies.
- SPECIAL CONSIDERATIONS REGARDING MINORS:
- 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 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. If You are not at least eighteen (18) or twenty-one (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.
- You may be asked to verify your birth date on the Birth Date VerifierT form as a condition of entry onto the Site, pursuant to 28 U.S.C. §1746. Accordingly, if You provided incorrect information on the Birth Date VerifierT 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.
- We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s or Webmaster’s age.
- Users represent and warrant that no minors will be permitted to access this Site. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help Users limit minors' access to harmful or inappropriate material. You acknowledge that if Your computer can be accessed by a minor, that You will take all precautions to keep Our Site 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.
- WE HAVE A ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIAC ACTIVITY.
- You understand that all depictions of all persons on this Site and in all Materials produced or published by the Publisher depict 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 on Our Site.
- If You seek any form of child pornography (including so-called “virtual” child pornography), You must exit this Site immediately. We do not provide or review this kind of material and We do not tolerate those who produce, disseminate or consume this kind of material.
- 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:
- Include with your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken.
- We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If You suspect other outside websites are participating in unlawful activities involving minors, please report them to http://www.asacp.org.
- IMAGES AND CONTENT:
- Our Site contains 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, the "Materials" or "Our Materials").
- 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.
- 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.
- 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.
- You agree not to use or access the Site if doing so would violate the laws of Your state, province, or country.
- RESTRICTIONS ON USE OF SITE:
- You agree that You will only use the Site for purposes expressly permitted and contemplated by this Terms of Service Agreement. You may not use the Site for any other purpose without Our express, prior written consent.
- Without Our express, prior written authorization, You may not:
- Duplicate any part of the Site or the Materials contained therein (except as expressly provided elsewhere in this Agreement);
- 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”;
- 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”;
- Redistribute 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”;
- Remove any copyright or other proprietary notices from the Site or any of the Materials contained therein;
- Frame or utilize any framing techniques in connection with the Site or any of the Materials contained therein;
- 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. Further, You stipulate to liquidated damages of $5,000.00 per such infringement, and You agree to pay any and all fees incurred in the recovery of this amount, including attorneys’ fees and all associated costs.
- 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);
- Use any data mining, bots, or similar data gathering and extraction tools on the Site;
- Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law;
- 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
- 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 United States or International laws even if a claim arises after your service is terminated, and by doing so, Your actions shall constitute a material breach of this Agreement and the Site shall terminate all of Your rights under this Agreement.
- To report violations of this Agreement, please email:
- 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 $5,000.00 plus any and all fees associated with recovery of these damages, including attorneys' fees and costs.
- Stipulated Liquidated Damages -
- 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.
- 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 $100.00 per occurrence. You specifically agree to pay this $100.00 in liquidated damages.
- 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.
- DISCLAIMER OF WARRANTY:
- You expressly agree that use of Our Services, 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.
- Our Services, 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.
- 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.
- 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.
- 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.
- 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.
- Publisher may change any of the information found on this Site at any time without notice including this Terms of Service Agreement without notice. Site owner makes no commitment to update the information found at this Site. Site makes no commitment to update the Materials.
- 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. These provisions are void where prohibited.
- DISCLAIMER AND INDEMNIFICATION:
- 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.
- 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.
- 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.
- 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 while 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 part of this Terms of Service 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.
- LIMITATION OF LIABILITY:
- 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.
- 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.
- LINKS AND LINKING:
- 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.
- 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.
- 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 Terms of Service Agreement, or any other agreement provided by Publisher on its website(s), which are incorporated herein by reference.
- Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by the Publisher of such websites or the content, products, advertising, or other materials presented on such Site, but are for user's convenience.
- 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.
- Although this site provides unbiased, objective reviews of third party websites, the Publisher assumes no responsibility for Your reliance on the information contained in any such reviews, and does not ensure the accuracy or correctness of such information. All Users are encouraged to think for themselves. The information contained in website reviews is intended to allow Users to make informed decisions, not to substitute for the Users’ decision making ability.
- TRADEMARK INFORMATION
- Our Site name is a service mark and/or trademark of the Site. All rights are reserved. The name of the Site and the name of the Publisher are considered trademarks owned by the Publisher. These names include, but are not limited to, FetishFish.com, "Fetish Fish," "FetishFish," "Fetish Fish yanks your rod." Further, such protected marks include the following copyrighted image and its variations / derivations:
We aggressively defend Our intellectual property rights.
- 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.
- 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 discredits Publisher.
- COPYRIGHT INFORMATION:
- 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. Therefore, violation of our copyrights may result in immediate legal action, and the imposition of statutory or compensatory damages.
- 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.
- Modification or use of the Content except as expressly provided in this Terms of Service Agreement violates the Publisher's intellectual property rights.
- Neither title nor intellectual property rights are transferred to You by access to the Site.
- 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 United States and international copyright laws, as well as other laws and regulations. © Exsitu Marketing, Inc (2005-2006), all rights reserved.
- 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 United States' Digital Millennium Copyright Act. If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Publisher's Designated Copyright Agent the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- Description of the copyrighted work or other intellectual property that You claim has been infringed;
- A description of where the material that You claim is infringing is located on a Site;
- Your address, telephone number, and email address;
- 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
- 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.
- You may send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
Weston, Garrou, DeWitt & Walters
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 975-9150
Fax: (407) 774-6151
Please do not send other inquiries or information to Our Designated Agent.
- NOTICE AND TAKEDOWN PROCEDURES:
The Publisher implements the following "notice and takedown" procedure upon receipt of any notification of claimed copyright infringement:
- 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.
- 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 notice requirements.
- 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 ten to fourteen (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.
- EXPORT CONTROL:
- You understand and acknowledge that the software elements of the Materials on the Site may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States' or international law is prohibited.
- You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
- 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.
- 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.
- 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.
- 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
- Change of Email Address – Either the Publisher or a Webmaster may change the email address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
- When Notice is Effective – Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
- 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.
- 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.
- 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, for so long as such event continues to delay the Site's performance.
- GENERAL PROVISIONS:
- Governing Law –
This Terms of Service Agreement and all matters
arising out of, or otherwise relating to, this
Terms of Service Agreement shall be governed
by the laws of the province of Quebec, 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 Montreal, Quebec, Canada.
- 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 Montreal,
- The parties agree to exclusive
jurisdiction in, and only in Montreal, Quebec,
- The parties agree to exclusive
venue in, and only in, Montreal, Quebec,
- 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.
- 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.
- All parties stipulate that the state
and federal courts located in Montreal,
Quebec, Canada, 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
- 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.
- 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.
- 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.
- Assignment – The rights
and liabilities of the parties hereto will bind
and inure to the benefit of their respective
assignees, successors, executors, and administrators,
as the case may be.
- Severability – If
for any reason a court of competent jurisdiction
finds any provision of this Terms of Service
Agreement, or any portion thereof, to be unenforceable,
that provision will be enforced to the maximum
extent permissible and the remainder of this
Terms of Service Agreement will continue in
full force and effect.
- Attorneys’ Fees –
In the event any Party shall commence any claims,
actions, formal legal action 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 attorneys’
fees and costs incurred in connection therewith,
including attorneys’ fees incurred on
- Complaints – California Residents
The Complaint Assistance Unit of the Division
of Consumer Services of the Department of Consumer
Affairs may be contacted in writing at 1020
N. Street, #501, Sacramento, CA 95814, or by
telephone at 1-916-445-1254.
- 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 Terms of Service 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 Terms of Service Agreement.
- Headings – All headings
are solely for the convenience of reference
and shall not affect the meaning, construction
or effect of this Terms of Service Agreement.
- Complete Agreement –
This Terms of Service Agreement constitutes
the entire agreement between the parties with
respect to Your access and use of the Site and
the Materials contained therein, and supersede
and replace all prior understandings or agreements,
written or oral, regarding such subject matter.
- 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.