FetishPros.com
Terms-of-Service Agreement
Last Updated:
May 2, 2019
Media Stars LLC,
a Nevada limited liability company (the “Company”), welcomes you to
FetishPros.com (the “Website”). It is
important to the Company that you and other visitors have the best possible
experience while using the Website, and that, when you use the Website, you
understand your legal rights and obligations. Please read this terms-of-service
agreement, which is a legal agreement between you and the Company that governs
your access to and use of the Website, including any content, functionality, and
services offered on or through the Website. Your access to the Website is on the
condition that you agree to this agreement. Please pay special attention to the
following: (1) disclaimer of warranties (section 14); (2) limit on liability and exclusion of damages (sections 15 and 16); (3)
place for resolving disputes (section 19.2); (4) mandatory arbitration (section 20.1); (5) class action waiver (section 20.5); and (6)
limitation on time to file disputes (section 20.6).
Section 230(d) Notice:
In accordance with 47 U.S.C. § 230(d), you are
notified that parental control protections (including computer hardware,
software, or filtering services) are commercially available that may help in
limiting access to material that is harmful to minors. You may find information
about providers of these protections on the Internet by searching “parental
control protection” or similar terms.
Age Restriction: Only adults (1)
who are at least 18-years old and (2) who have reached the age of majority where
they live may access the Website. The Company forbids all persons who do not
meet these age requirements from accessing the Website. If minors have access to
your computer, please restrain their access to sexually explicit material by
using any of the following products, which the Company provides for
informational purposes only and does not endorse:
CYBERsitter™ |
Net Nanny® |
CyberPatrol |
ASACP.
Notice of Recurring Memberships:
Unless stated otherwise, memberships
automatically renew under this agreement unless you cancel before the end of
your term. To cancel your membership, contact the
payment processor you signed up through. Your
payment method will automatically be charged at the rate in effect at the time
you originally signed up.
1.
Introduction
1.1
The Website allows you to purchase access to
digital content, including videos for streaming or download or both. To view the
videos, you will need a personal computer, tablet, phone, or other device that
meets the Website’s system and compatibility requirements. When streaming, the
resolution and quality of the video you receive will depend on a number of
factors, including your Internet bandwidth, which may fluctuate while a video is
being streamed.
1.2
This agreement applies to all users of the
Website, whether you are a “visitor” or a “registered user.”
By clicking on
the “I Agree” button on the warning page, checking the appropriate box during
sign up, purchasing a premium membership or content, or accessing any part of
the Website, you agree to this agreement. If you do not want to agree to
this agreement, you must
leave the Website. If you breach
any part of this agreement, the Company may revoke your license to access the
Website, block your access, and terminate your account (if you have one).
1.3 The Company may change
this agreement on one or more occasions by updating this page. The top of this
page will tell you when the Company last updated this agreement. Changes will
take effect on the “last updated” date stated on the top of this page. Changes
will not operate retroactively. The Company will try to notify you when it
changes this agreement if it can do so in a reasonable manner. But you should
frequently check this page to make sure that you are operating under the most
current version of this agreement. The Company will consider your continued use
of the Website after it posts the changes as your acceptance of the changes even
if you do not read them. If you do not agree to the changes, your sole remedy is
to stop accessing the Website.
1.4
If you have any questions about this agreement or
any questions or comments about the Website, please email the Company at
[email protected].
2.
Adult-Oriented Content and Affirmative Representations.
The Website contains
uncensored sexually explicit material unsuitable for minors. Only adults (1) who
are at least 18-years old and (2) who have reached the age of majority where
they live may access the Website.
If you do not meet these age requirements, you must not
access the Website and
must leave now. By accessing the Website, you state
that the following facts are accurate:
2.1
You (1) are at least 18-years old, (2) have
reached the age of majority where you live, and (3) have the legal capacity to
enter into this agreement;
2.2
All information you provided to the Company is
accurate, and you will promptly update this information when necessary to make
sure that it remains accurate;
2.3
You own (or have permission to use) the credit
card you pay with and authorize the Company (or its authorized payment
processing agent) to charge the credit card according to your purchase;
2.4
You are aware of the adult nature of the content
available on the Website, and you are not offended by visual images, verbal
descriptions, and audio sounds of a sexually oriented nature, which may include
graphic visual depictions and descriptions of nudity and sexual activity;
2.5
You are familiar with your community’s laws
affecting your right to access adult-oriented materials, including sexually
explicit material depicting bondage, S/M, and other fetish activities;
2.6
You have the legal right to access adult-oriented
materials, including sexually explicit material depicting bondage, S/M, and
other fetish activities, and the Company has legal right to transmit them to
you;
2.7
You are voluntarily requesting adult-oriented
materials for your own private enjoyment;
2.8
You are not accessing the Website from a place,
country, or location in which doing so would, or could be considered a violation
of any law;
2.9
You will not share these materials with a minor or otherwise make them available to a
minor; and
2.10
By accessing the Website, you will have released
and discharged the providers, owners, and creators of the Website from all
liability that might arise.
3.
Accessing
the Website. The Company may withdraw or amend this Website, and any service
or material it provides on the Website, in its sole discretion without notice.
The Company will not be liable if for any reason all or any part of the Website
is unavailable at any time or for any period. From time to time, the Company may
restrict access to some parts of the Website, or the entire Website, to users,
including registered users. You are responsible for making all arrangements
necessary for you to have access to the Website.
4.
Your
Account
4.1
Account
Creation. You
must complete the registration process by providing the Company with accurate
information as prompted by the registration form. You must also choose a
password and a username.
4.2
Responsibility
for Account.
You
are responsible for maintaining the confidentiality of your password and
account. Further, you are responsible for all activities that occur under your
account. You will promptly notify the Company of any unauthorized use of your
account or any other breach of security.
4.3
Liability
for Account Misuse. The Company will not be liable for any loss that you may
incur as a result of someone else using your password or account, either with or
without your knowledge. You could be held liable for losses incurred by the
Company or another party due to someone else using your account or password.
4.4
Use of
Other Accounts. You must not use anyone else’s account at any time.
4.5
Account
Security. The Company cares about
the integrity and security of your personal information. But the Company cannot
guarantee that unauthorized third parties will never be able to defeat the
Website’s security measures or use any personal information you provide to the
Company for improper purposes. You acknowledge that you provide your personal
information at your own risk.
4.6
Communication Preferences. By registering for an account, you consent to
receiving electronic communications from the Company relating to your account.
These communications may involve sending emails to your email address provided
during registration or posting communications on the Website and will include
notices about your account (e.g., payment authorizations, change in password or
payment method, confirmation emails, and other transactional information) and
are part of your relationship with the Company. You acknowledge that any
notices, agreements, disclosures, or other communications that the Company sends
to you electronically will satisfy any legal communication requirements,
including that these communications be in writing. The Company recommends that
you keep copies of electronic communications by printing a paper copy or saving
an electronic copy. You also consent to receiving certain other communications
from the Company, including newsletters about new features and content, special
offers, promotional announcements, and customer surveys via email or other
methods. You acknowledge that communications you receive from the Company may
contain sexually explicit material unsuitable for minors. If you no longer want
to receive certain non-transactional communications, please review the
Privacy Policy
regarding opting out of marketing communications.
5.
Intellectual-Property Rights
5.1
Ownership.
The Website and its entire contents, features, and functionality (including
all information, software, text, displays, images, video, and audio, and the
design, selection, and arrangement of it) are owned by the Company, the
Company’s licensors, or other providers of that material and are protected by
copyright, trademark, patent, trade secret, and other intellectual property or
proprietary rights laws.
5.2
License
Grant. This agreement grants you a nonexclusive, nonsublicensable,
nontransferable, limited license to use the Website and any purchased content
for your personal, noncommercial use only. You must not reproduce, distribute,
modify, create derivative works of, publicly display, publicly perform,
republish, download, store, or transmit any of the material on the Website,
except as follows:
(a)
Your computer may temporarily store copies of
those materials in RAM incidental to your accessing and viewing those materials.
(b)
You may store files that are automatically cached
by your Web browser for display enhancement purposes.
(c)
You may print or download one copy of a
reasonable number of pages of the Website for your own personal, noncommercial
use and not for further reproduction, publication, or distribution.
(d)
You may download or stream any audiovisual
content to which you have properly gained access solely for your personal,
noncommercial use and not for further reproduction, publication, or
distribution.
(e)
If the Company provides desktop, mobile, or other
applications for download, you may download a single copy to your computer or
mobile device solely for your own personal, noncommercial use, on condition that
you agree to be bound by the Company’s end user license agreement for those
applications.
(f)
If the Company provides social media features
with certain content, you may take those actions as are enabled by those
features.
5.3
License
Restrictions
(a)
You must not:
(i)
Download any purchased content unless authorized
by the Company in writing.
(ii)
Modify copies of any materials from this Website.
(iii)
Use any illustrations, photographs, video or
audio sequences, or any graphics separately from the accompanying text.
(iv)
Delete or alter any copyright, trademark, or
other proprietary rights notices from copies of materials from this Website.
(b)
You must not access or use for any commercial
purposes any part of the Website or any services or materials available through
the Website.
(c)
If you print, copy, modify, download, stream, or
otherwise use or provide any other person with access to any part of the Website
in breach of this agreement, your right to use the Website will stop immediately
and you must, at the Company’s option, return or destroy any copies of the
materials you have made. No interest in or to the Website or any content on the
Website is transferred to you, and the Company reserves all rights not expressly
granted. Any use of the Website not expressly permitted by this agreement is a
breach of this agreement and may violate copyright, trademark, and other laws.
5.4
Trademarks.
The Company’s name; the term FETISH PROS; the Company logo; the Website
logo; and all related names, logos, product and service names, designs, and
slogans are trademarks of the Company or its affiliates or licensors. You must
not use those marks without the Company’s prior written permission. All other
names, logos, product and service names, designs, and slogans on this Website
are the trademarks of their respective owners.
6.
Prohibited
Uses
6.1
You must use the Website only for lawful purposes
and in accordance with this agreement. You must use the Website:
(a)
In any way that violates
any applicable federal, state, local, or international law or
regulation (including any laws regarding the export of data or software to and
from the US or other countries).
(b)
For
the purpose of exploiting, harming or attempting to exploit or harm minors in
any way by exposing them to inappropriate content, asking for personally
identifiable information or otherwise.
(c)
To
transmit, or procure the sending of, any advertising or promotional material
without the Company’s prior written consent, including any “junk mail”, “chain
letter,” or “spam” or any other similar solicitation.
(d)
To
impersonate or attempt to impersonate the Company, a Company employee, another
user, or any other person or entity (including by using email addresses or
screen names associated with any of the foregoing).
(e)
To
engage in any other conduct that restricts or inhibits anyone’s use or enjoyment
of the Website, or which, as determined by the Company, may harm the Company or
users of the Website or expose them to liability.
6.2
Additionally, you must not:
(a)
Use
the Website in any manner that could disable, overburden, damage, or impair the
site or interfere with any other party’s use of the Website, including their
ability to engage in real time activities through the Website.
(b)
Use
any robot, spider, or other automatic device, process, or means to access the
Website for any purpose, including monitoring or copying any of the material on
the Website.
(c)
Use
any manual process to monitor or copy any of the material on the Website or for
any other unauthorized purpose without the Company’s prior written consent.
(d)
Use
any device, software or routine that interferes with the proper working of the
Website.
(e)
Introduce any viruses, trojan horses, worms, logic bombs, or other material
which is malicious or technologically harmful.
(f)
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any
parts of the Website, the server on which the Website is stored, or any server,
computer, or database connected to the Website.
(g)
Attack
the Website via a denial-of-service attack or a distributed denial-of-service
attack.
(h)
Otherwise attempt to interfere with the proper
working of the Website.
7.
Termination
7.1
Termination on Notice. Either party may terminate this agreement at any time
by notifying the other party.
7.2
Termination by the Company. The Company may suspend, disable, or terminate
your access to the Website (or any part of it) if it determines that you have
breached this agreement or that your conduct would tend to damage the Company’s
reputation and goodwill. If the Company terminates your access for any of these
reasons, you must not access the Website. The Company may block your email
address and IP address to prevent further access.
7.3
Effect of
Termination. On termination, your right to access the Website and all
licenses granted by the Company terminates. Termination of your access to the
Website will not relieve you of any obligations arising or accruing before
termination or limit any liability that you otherwise may have to the Company or
any third party. You are solely responsible for making
sure that any recurring billing is cancelled. To cancel recurring billing,
please contact the payment processor you signed up through.
7.4
Survival.
This agreement’s provisions that by their nature should survive termination
will survive termination, including ownership provisions, warranty disclaimers,
and limitations of liability.
8.
Changes to
the Website. The Company may update the Website’s content from time to time,
but its content is not necessarily complete or up-to-date. Any of the Website’s
material may be out of date at any given time, and the Company is not required
to update that material.
9.
Information About You and Your Visits to the Website. For information about
how the Company collects, uses, and shares your personal data, please review the
Privacy Policy.
10.
Premium
Membership, Trial Memberships, Billing, and Cancellation
10.1
Premium
Membership
(a)
Ongoing
Membership. Your premium membership, which may start with a trial
membership, will continue month-to-month (or any longer term selected) and
automatically renew unless you cancel your membership (or your membership is
nonrecurring) or the Company terminates it. You must have Internet access and
provide the Company with a current, valid, accepted method of payment. The
Company or its authorized payment processor will bill the membership fee to your
chosen payment method. You must cancel your premium membership before it renews
each term to avoid billing of the next term’s premium membership fees to your
chosen payment method.
(b)
Differing
Memberships. The Company may offer several membership plans, including
special promotional plans or memberships with differing conditions and
limitations. Any material different terms from those described in this agreement
will be disclosed at your signup or in other communications made available to
you.
10.2
Trial
Memberships (If Available). Your premium
membership may start with a trial. The trial period of your premium membership
lasts for the period specified during signup. The Company or its payment
processor will begin billing your payment method for monthly membership fees at
the end of the trial period of your premium membership, and your premium
membership will automatically renew monthly unless you cancel before the end of
the trial period. The Company or its payment processor may authorize your
payment method through various methods, including authorizing it up to
approximately one month of service as soon as you register. In some cases, your
available balance or credit limit may be reduced to reflect the authorization
during your trial period. The Company or its payment processor will continue to
bill your payment method monthly for your premium membership fee until you
cancel.
10.3
Billing
(a)
Recurring
Billing (does not apply if you selected one-time charge).
By starting your premium membership and
providing or designating a payment method, you hereby authorize the Company or
its payment processor to charge you a premium membership fee at the rate in
effect when you originally signed up, and any other charges you may incur in
connection with your use of the Website, such as taxes or possible transaction
fees. Your premium
membership will continue for the length of the initial term you select, and, at
the end of your prepaid initial term, it will automatically renew for additional
prepaid periods of the same length. You must cancel your premium membership
before it renews to avoid billing of the next term’s premium membership fees to
your payment method. Your account will automatically be charged at the rates in effect at
the time you originally signed up.
(b)
Price
Changes. The Company may adjust
pricing for its service or any components of it in any way and at any time as it
may determine in its sole discretion. Any price changes will not affect your
current membership (including any renewals) unless the Company gives you 30-days
advance email notice to you.
(c)
Billing
Cycle (does
not apply if you selected one-time charge). The membership fee will
be billed at the beginning of the initial term of your premium membership and
every 30 days afterwards until you cancel your premium membership (unless you
selected one-time charge when you purchased your premium membership). The
Company or its payment processor automatically bills your payment method every
30 days. Membership fees are fully earned on payment.
(d)
Billing
Disputes. If you believe that the Company has charged you in error, you must
notify the Company in writing no later than 30 days after you receive the
billing statement in which the error first appeared. If
you fail to notify the Company in writing of a dispute within this 30-day
deadline, you waive any disputed charges. You must submit any billing
disputes in writing to
[email protected] and include a detailed statement describing the
nature and amount of the disputed charges. The Company will correct any mistakes
in a bill and add or credit them against your future payments.
(e)
Chargebacks. You are liable to the Company for any credit card chargebacks
or related fees that the Company incurs on your account.
If you fail to pay the Company for any credit card chargeback or related fees no
later than 30 days after its initial demand for payment, you will pay the
Company $100 in additional liquidated damages, plus any costs the Company incurs
for each chargeback or related fee.
(f) No
Refunds. The Company considers all purchases final
when made, except that the Company may approve a refund in the form of a credit
on request if exceptional circumstances exist. If you believe exceptional
circumstances exist, please email the Company at
[email protected]
and explain the exceptional circumstances that you believe merits a refund. The
Company is not making any promise that it will give you a refund. If the Company
gives you a refund, the Company will issue the refund in the form of a credit to
the payment method you used for your purchase; the Company will not make refunds
in the form of cash, check, or free services. The provision of a refund in one
instance does not entitle you to a refund in the future for similar instances;
nor does it obligate the Company to provide refunds in the future, under any
circumstance.
(g)
Cancellation. You may cancel your premium membership at any time, and you
will continue to have access to the Website through the end of your membership
term. The Company does not provide refunds or credits for any partial-month
membership periods. To cancel your premium membership,
you may visit cs.segpay.com
or call 1-866-450-4000 in the US & Canada or +1-954-414-1610 if outside the US.
11.
Buying
Clips Individually (Pay-Per-Clip)
11.1
Purchases.
The Website may offer you the ability to buy clips on a pay-per-clip basis. If
it does, you may buy clips without registering for an account. It is your
responsibility to check the price before buying a clip. Pricing excludes any
taxes or currency transmission charges, which are extra costs charged to you.
11.2
Payment.
The Company accepts payment via the payment methods identified on the
Website before checkout. Unless the Website indicates otherwise, you must have a
valid accepted form of payment on file to make a purchase. You must abide by any
relevant terms of service or other legal agreement, whether with the Company or
a third party, that governs your use of a given payment method. You must pay in
advance for all content purchased. The Company or its payment processor will
charge your credit card or other form of payment for the price listed for the
applicable clip, along with any additional amounts relating to applicable taxes,
bank fees, and currency fluctuations.
11.3
No
Recurring Billing. All pay-per-clip purchases are one-time charges, meaning
the Company will not charge you again unless you purchase another clip.
11.4
Price
Changes. The Company may adjust pricing for
clips at any time as the Company may determine in its sole discretion. The
Company does not provide price protection or refunds in the event of a price
reduction or promotional offering.
11.5
Billing
Errors. If you believe that the Company has charged you in error, you must
notify the Company in writing no later than 30 days after you receive the
billing statement in which the error first appeared. If you fail to notify the
Company in writing of a dispute within this 30-day period, you waive any
disputed charges. You must submit any billing disputes to the Company by email
at [email protected] and
include a detailed statement describing the nature and amount of the disputed
charges. The Company will correct any mistakes in a bill and credit them against
your future purchases.
11.6
No
Refunds. All sales and transactions are final. Once
you pay for a clip, it is non-refundable. But the Company may approve a
refund in the form of a credit on request if exceptional circumstances exist.
If you believe exceptional circumstances exist,
please email the Company at
[email protected] and explain the
exceptional circumstances that you believe merits a refund. The amount
and form of a refund, and the decision to provide it, is at the Company’s sole
discretion. The provision of a refund in one instance does not entitle you to a
refund in the future for similar instances; nor does it obligate the Company to
provide refunds in the future, under any circumstance.
12.
Links from
the Website.
If the Website
contains links to other sites and resources provided by third parties, these
links are provided for your convenience only. This includes links contained in
advertisements, including banner advertisements and sponsored links. The Company
has no control over the contents of those sites or resources and accept no
responsibility for them or for any loss or damage that may arise from your use
of them. If you decide to access any of the third-party websites linked to this
Website, you do so entirely at your own risk and subject to the terms of use for
those websites.
13.
Geographic
Restrictions.
The
owner of the Website is based in the state of Nevada, United States of America.
The Company is not making any statement that the Website or any of its content
is accessible or appropriate outside of the United States. Access to the Website
might not be legal by certain persons or in certain countries. If you access the
Website from outside the United States, you do so on your own initiative and are
responsible for complying with all local laws.
14.
Warranty
Disclaimers
14.1
You understand that the Company cannot and does
not guarantee or warrant that files available for downloading from the Internet
or the Website will be free of viruses or other destructive code. You are
responsible for implementing sufficient procedures and checkpoints to satisfy
your particular requirements for anti-virus protection and accuracy of data
input and output, and for maintaining a means external to the Website for any
reconstruction of any lost data. The Company will not be
liable for any loss or damage caused by a distributed denial-of-service attack,
viruses, or other technologically harmful material that may infect your computer
equipment, computer programs, data, or other proprietary material due to your
use of the Website or any services or items obtained through the Website or to
your downloading of any material posted on it, or on any website linked to it.
14.2
Your use of the Website,
its content, and any services or items obtained through the Website is at your
own risk. The Company provides the Website, its content, and any services or
items obtained through the Website “as is,” “with all faults,” and “as
available,” without making any warranty, either express or implied. The Company
is not making any warranty (1) that the Website, its content, or any services or
items obtained through the Website will be accurate, reliable, error-free, or
uninterrupted; (2) that defects will be corrected; (3) that the Website or the
server that makes it available are free of viruses or other harmful components;
or (4) that the Website or any services or items obtained through the Website
will otherwise meet your needs or expectations.
14.3
The Company is not making
any warranty, whether express, implied, statutory, or otherwise, including
warranty of merchantability, title, noninfringement, privacy, security, and
fitness for a particular purpose. No advice or information, whether
oral or written, obtained from the Company, the Website, or elsewhere will
create any warranty not expressly stated in this agreement.
15.
Limit on
Liability; Release
15.1
The Company, its
directors, officers, employees, agents, subsidiaries, affiliates, licensors,
content providers, and service providers will not be liable to you for any of
the following:
(a)
Errors, mistakes, or
inaccuracies of content;
(b)
Personal injury or
property damage resulting from your access to and use of the Website or its
content;
(c)
Content or conduct that
is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing,
defamatory, libelous, abusive, invasive of privacy, or illegal;
(d)
Unauthorized access to or
use of the Company’s servers and any personal or financial information stored in
them, including unauthorized access or changes to your account, transmissions,
or data;
(e)
Interruption or cessation
of transmission to or from the Website;
(f)
Bugs, viruses, Trojan
horses, malware, ransomware, or other disabling code that may be transmitted to
or through the Website by any person or that might infect your computer or
affect your access to or use of the Website, your other services, hardware, or
software;
(g)
Incompatibility between
the Website and your other services, hardware, or software;
(h)
Delays or failures you
might experience in starting, conducting, or completing any transmissions to or
transactions with the Website; or
(i)
Loss or damage incurred
because of the use of any content posted, emailed, sent, or otherwise made
available through the Website.
15.2
You hereby release the
Company, its directors, officers, employees, agents, subsidiaries, affiliates,
licensors, content providers, and service providers from all liability arising
out of the conduct of other users or third parties, including disputes between
you and one or more other users or third parties.
16.
Exclusion
of Damages; Exclusive Remedy
16.1
Unless caused by gross
negligence or intentional misconduct, the Company, its directors, officers,
employees, agents, subsidiaries, affiliates, licensors, content providers, and
service providers will not be liable to you for any direct, indirect, special
(including so-called consequential damages), statutory, punitive, or exemplary
damages arising out of or relating to your access or your inability to access
the Website or the content. This exclusion applies regardless of theory
of liability and even if you told the Company about the possibility of these
damages or the Company knew or should have known about the possibility of these
damages.
16.2
The Company, its
directors, officers, employees, agents, subsidiaries, affiliates, licensors,
content providers, and service providers will not be liable to you for any
damages for (1) personal injury, (2) pain and suffering, (3) emotional distress,
(4) loss of revenue, (5) loss of profits, (6) loss of business or anticipated
savings, (7) loss of use, (8) loss of goodwill, (9) loss of data, (10) loss of
privacy, or (11) computer failure related to your access of or your inability to
access the Website or the content. This exclusion applies regardless of
theory of liability and even if you told the Company about the possibility of
these damages or the Company knew or should have known about the possibility of
these damages.
16.3
If you are dissatisfied
with the Website or have any other complaint, your exclusive remedy is to stop
using the Website. The maximum liability of the Company and its directors,
officers, employees, agents, subsidiaries, affiliates, licensors, content
providers, and service providers to you for any claim will not exceed the
greater of $100 and the amount you have paid to the Company for the applicable
purchase out of which liability arose even if the remedy fails of its essential
purpose.
17.
Scope of
Disclaimers, Exclusions, and Limits. The disclaimers, exclusions, and limits
stated in sections 14, 15, 16 apply to the greatest
extent allowed by law, but no more. The Company does not intend to deprive you
of any mandatory protections provided to you by law. Because some jurisdictions
may prohibit the disclaimer of some warranties, the exclusion of some damages,
or other matters, one or more of the disclaimers, exclusions, or limits will not
apply to you.
18.
Indemnification
18.1
In General.
You will pay the Company, its directors,
officers, employees, agents, contractors, subsidiaries, affiliates, licensors,
content providers, and service providers (the “Indemnified
Parties”) for any loss of an Indemnified Party that is caused by any of the
following: (a) your access of or conduct on the Website; (b) your breach of this
agreement; (c) your violation of rights of any person, including intellectual
property, publicity, and privacy rights; (d) your violation of any applicable
law; (e) your tortious acts or omissions; or (f) your criminal acts or
omissions. But you are not required to pay if the loss was caused by the
Indemnified Party’s actual intentional misconduct.
18.2
Definitions
(a)
“Loss”
means an amount that the Indemnified Party is legally responsible for or pays in
any form. Amounts include, for example,
a judgment,
a settlement, a fine, damages, injunctive relief, staff compensation, a
decrease in property value, and expenses for defending against a claim for a
loss (including fees for legal counsel, expert witnesses, and other advisers). A
loss can be tangible or intangible; can arise from bodily injury, property
damage, or other causes; can be based on tort, breach of contract, or any other
theory of recovery; and includes incidental, direct, and consequential damages.
(b)
A loss is “caused
by” an event if the
loss would not have happened without the
event, even if the event is not a proximate cause of the loss.
18.3
Indemnified Party’s Duty to Notify. The Indemnified Party will
notify you before the 30th day after the Indemnified Party knows or
should reasonably have known of a claim for a loss that you might be compelled
to pay. But the Indemnified Party’s failure to timely notify you does not end
your obligation, except if that failure prejudices your ability to defend or
mitigate losses.
18.4
Legal
Defense of a Claim. The Indemnified Party has
control over defending a claim for a loss
(including settling it) unless the
Indemnified Party directs you to control the defense.
If the Indemnified Party directs you to control the defense, you will not
settle any litigation without the Indemnified Party’s written consent if the
settlement (1) imposes a penalty or limitation on the Indemnified Party, (2)
admits the Indemnified Party’s fault, or (3) does not fully release the
Indemnified Party from liability. You and the Indemnified Party will
cooperate with each other in good faith on a claim.
18.5
No
Exclusivity. The Indemnified Parties’ rights under this section 18
do not affect other rights
they might have.
19.
Governing
Law; Place for Resolving Disputes
19.1
Nevada law, without giving effect to any
conflicts of law principles, governs all matters arising out of or relating to
the Website or this agreement. The predominant purpose of this agreement is
providing services and licensing access to intellectual property and not a “sale
of goods.” This agreement will not be governed by the United Nations Convention
on Contracts for the International Sale of Goods, the application of which is
expressly excluded.
19.2
Except for
disputes subject to arbitration, all disputes arising out of or relating to the
Website or this agreement will be subject to the exclusive jurisdiction and
venue of the United States District
Court for the District of Nevada or any state court in Clark County, Nevada.
Each party hereby submits to the personal jurisdiction of the United States
District Court for the District of Nevada and the state courts in Clark County,
Nevada to resolve all disputes not subject to arbitration. Each party hereby
waives any right to seek another forum or venue because of improper or
inconvenient forum.
19.3
For purposes of this section 19
, the Website will be
deemed solely based in the state of Nevada and will be deemed a passive website
that does not give rise to personal jurisdiction over the Company, either
specific or general, in any other jurisdiction.
20.
Alternative Dispute Resolution
20.1
Arbitration. As the exclusive means of initiating adversarial
proceedings to resolve any dispute arising out of or relating to the Website or
this agreement, a party may demand that any such dispute be resolved by
arbitration administered by the Arbitration Resolution Services, Inc. (ARS) (or
a similar online dispute resolution provider if ARS is not available) in
accordance with its rules available at
www.arbresolutions.com,
and each party hereby consents to any such dispute being so resolved. The
arbitrator, and not any federal, state, or local court or agency, will have
exclusive authority to resolve all disputes arising out of or relating to the
interpretation, enforceability, or formation of this agreement, including any
claim that all or any part of this agreement is void or voidable. Each party will be responsible for paying any filing, administrative,
and arbitrator fees associated with the arbitration. The arbitrator may grant whatever relief that would be
available in a court at law or in equity, except that the arbitrator must not
award punitive or exemplary damages, or damages otherwise limited or excluded in
this agreement. The arbitrator’s award will include costs of arbitration,
reasonable legal fees under section 20.3
,
and reasonable costs for expert and other witnesses. Judgment on any award
rendered in any such arbitration may be entered in any court having
jurisdiction. Unless required by law, neither a party nor an arbitrator will
disclose the existence, content, or results of any arbitration under this
agreement without the advance written consent of both parties.
20.2
Injunctive
Relief. The parties
acknowledge that breach by either party of the obligations under this agreement
could cause irreparable harm for which damages would be an inadequate remedy.
Nothing in this section 20
will prevent either party
from seeking injunctive or other equitable relief from the courts for matters
related to data security, intellectual property, or unauthorized access to the
Website, in each case without posting a bond or other security and
without proof of actual money damages in connection with the claim.
20.3
Recovery
of Expenses.
In any proceedings between the parties arising out
of or relating to the Website or this agreement, the prevailing party will be
entitled to recover from the other party, besides any other relief awarded, all
expenses that the prevailing party incurs in those proceedings, including legal
fees and expenses. For purposes of this section
20.3
, “prevailing party”
means, for any proceeding, the party in whose favor an award is rendered, except
that if in those proceedings the award finds in favor of one party on one or
more claims or counterclaims and in favor of the other party on one or more
other claims or counterclaims, neither party will be the prevailing party. If
any proceedings are voluntarily dismissed or are dismissed as part of settlement
of that dispute, neither party will be the prevailing party in those
proceedings.
20.4
Jury Trial
Waiver. Each party hereby waives its right to a trial by jury in any proceedings
arising out of or relating to the Website
or this agreement. Either party may enforce this waiver up to and including the
first day of trial.
20.5
Class
Action Waiver. All claims must be brought in the
parties’ individual capacity, and not as a plaintiff or class member in any
purported class or representative proceeding, and, unless the Company agrees
otherwise, the arbitrator will not consolidate more than one person’s claims.
Both parties acknowledge that each party is waiving the right to participate in
a class action.
20.6
Limitation
on Time to Bring Claims. A party will not bring
a claim arising out of or relating to the Website or this agreement more than
one year after the cause of action arose. Any claim brought after one year is
barred.
21.
General
21.1
Entire
Agreement. This agreement constitutes the entire agreement between you and
the Company about your access to and use of the Website. It supersedes all
earlier or contemporaneous agreements between you and the Company about access
to and use of the Website. Any additional terms
on the Website will govern the items to which they pertain.
21.2
Changes.
The Company may change this agreement on one or more occasions. The Company will
try to post changes on the Website at least 15 days before they become
effective. Changes will become effective on the “last updated” date stated at
the top of this page. Changes will not apply to
continuing disputes or to disputes arising out of (or relating to) events
happening before the posted changes. While the Company will try to notify
you when the Company changes this agreement, the Company does not assume an
obligation to do so, and it is your responsibility to frequently check this page
to review the most current agreement. By continuing to
use the Website after the Company posts changes to this agreement, you agree to
the revised agreement. If you do not agree to the revised agreement, your
exclusive remedy is to stop accessing the Website. If you need more information
about the changes or have any other questions or comments about the changes,
please contact the Company at
[email protected].
21.3
Assignment
and Delegation. The Company
may assign its rights or delegate any performance under this agreement without
your consent. You will not assign your rights or delegate your performance under
this agreement without the Company’s advanced written consent. Any attempted
assignment of rights or delegation of performance in breach of this section 21.3
is void.
21.4
No
Waivers. The parties may waive a
provision in this agreement only by a writing signed by the party or parties
against whom the waiver is sought to be enforced. No failure or delay in
exercising any right or remedy, or in requiring the satisfaction of any
condition, under this agreement, and no act, omission, or course of dealing
between the parties, operates as a waiver or estoppel of any right, remedy, or
condition. A waiver made in writing on one occasion is effective only in that
instance and only for the purpose stated. A waiver once given is not to be
construed as a waiver on any future occasion or against any other person.
21.5
Severability.
The parties intend as follows:
(a)
that if any provision of this agreement is held to
be unenforceable, then that provision will be modified to the minimum extent
necessary to make it enforceable, unless that modification is not permitted by
law, in which case that provision will be disregarded;
(b)
that if modifying or disregarding the unenforceable
provision would result in failure of an essential purpose of this agreement, the
entire agreement will be held unenforceable;
(c)
that if an unenforceable provision is modified or
disregarded in accordance with this section
21.5
,
then the rest of the agreement will remain in effect as written; and
(d)
that any unenforceable provision will remain as
written in any circumstances other than those in which the provision is held to
be unenforceable.
21.6
Notices
(a)
Sending
Notice to the Company. You may send notice to the Company by email at
[email protected] unless a
specific email address is set out for giving notice. The Company will consider
an email notice received by the Company only when its server sends a return
message to you acknowledging receipt. The Company may change its contact
information on one or more occasions by posting the change on the Website.
Please check the Website for the most current information for sending notice to
the Company.
(b)
Sending
Notice to You—Electronic Notice. You consent to
receiving any notice from the Company in electronic form either (1) by email to
the last known email address the Company has for you or (2) by posting the
notice on a place on the Website chosen for this purpose. The Company
will consider notices sent to you by email received when its email service shows
transmission to your email address. You state that any email address you gave
the Company for contacting you is a current and valid email address for
receiving notice, and that your computer has hardware and software configured to
send and receive email through the Internet and to print any email you receive.
21.7
Force
Majeure. The Company is not responsible for any failure to perform if
unforeseen circumstances or causes beyond its reasonable control delays or
continues to delay its performance, including (a) acts of God, including fire,
flood, earthquakes, hurricanes, tropical storms, or other natural disasters; (b)
war, riot, arson, embargoes, acts of civil or military authority, or terrorism;
(c) fiber cuts; (d) strikes, or shortages in transportation, facilities, fuel,
energy, labor, or materials; (e) failure of the telecommunications or
information services infrastructure; and (f) hacking, SPAM, or any failure of a
computer, server, network, or software.
21.8
No
Third-Party Beneficiaries. This agreement does not, and the parties do not
intend it to, confer any rights or remedies on any person other than the parties
to this agreement.
21.9
Relationship of the Parties.
This agreement does not, and the parties do not intend it to, create a
partnership, joint venture, agency, franchise, or employment relationship
between the parties and the parties expressly disclaim the existence of any of
these relationships between them. Neither of the parties is the agent for the
other, and neither party has the right to bind the other on any agreement with a
third party.
21.10
Successors
and Assigns. This agreement
inures to the benefit of, and are binding on, the parties and their respective
successors and assigns. This section 21.10
does not address, directly
or indirectly, whether a party may assign rights or delegate obligations under
this agreement. Section 21.3
addresses these matters.
21.11
Electronic
Communications Not Private. The Company does not provide facilities for
sending or receiving confidential electronic communications. You should consider
all messages sent to the Company or from the Company as open communications
readily accessible to the public. You should not use the Website to send or
receive messages you only intend the sender and named recipients to read. Users
or operators of the Website may read all messages you send to the Website
regardless of whether they are intended recipients.
21.12
Electronic
Signatures. Any affirmation, assent, or agreement
you send through the Website will bind you. You acknowledge that when you click
on an “I agree,” “I consent,” or other similarly worded “button” or entry field
with your finger, mouse, keystroke, or other device, your agreement or consent
will be legally binding and enforceable and the legal equivalent of your
handwritten signature.
21.13
Consumer
Rights Information—California Residents Only. This section 21.13
applies only to California
residents. In compliance with section 1789 of the California Civil Code, please
note the following:
Media Stars LLC
PO BOX 400334
Las Vegas, Nevada 89140
Users who want
to gain access to the members-only area of the Website must be a member in good
standing. Users seeking to buy clips individually are redirected to
www.fetishpros.net. The Company posts the current membership
fees for the Website on the registration page. The Company may change the
membership fees at any time. Users may contact the Company at
[email protected] to resolve any billing disputes or to receive
further information about the Website.
21.14
Complaints—California
Residents Only. You may contact in writing the Complaint Assistance Unit of
the Division of Consumer Services of the Department of Consumer Affairs at 1020
North Street, #501, Sacramento, California 95814, or by telephone at +1 (916)
445-1254.
21.15
Feedback.
The Company encourage you to provide feedback about the Website. But the Company
will not treat as confidential any suggestion or idea provided by you, and
nothing in this agreement will restrict its right to use, profit from, disclose,
publish, or otherwise exploit any feedback, without payment to you.
21.16
Your
Comments and Concerns. You should direct all feedback, comments, requests
for technical support, and other communications relating to the Website to
[email protected].
