1.0 BACKGROUND AND INTENT.
1.1. SITE USAGE FEE WAIVED UNLESS VIOLATION OF TOU IS COMMITTED OR USE IS PROHIBITED. The Site Usage Fee is waived for You unless You:
In these listed instances, you must pay the Site Usage Fee each month during which you Access Site. (Unhappy with this provision ? You can opt-out.)
2.0 YOUR INDIVIDUAL POWER TO REQUEST
MODIFICATION OR "OPT-OUT" OF CERTAIN TERMS OF THIS AGREEMENT.
Unlike other providers of websites, Company allows individual users to request modifications to TOU. Such an approach allows Your own needs to be respected and met individually while also enabling Company to require meaningful assurances from You.
2.1 HOW TO MODIFY THIS AGREEMENT. If You wish to modify or "opt-out" of certain terms in this Agreement, you may contact the law firm that represents Company and provide a detailed explanation of the term(s) out of which You would like to opt. Then discontinue Your use of Site immediately and do not visit or use ("Access") Site until You have received a written STOU from Company.
3.0 ACCEPTANCE OF THIS AGREEMENT BY YOU.
By Accessing Site, You signify Your agreement to the terms of this TOU. You agree that such Access is conclusively evidenced by Your posting on Site, responding to a posting on Site, or otherwise tapping the functionality or benefits of Site. If You do not agree to any TOU terms, discontinue Your use of Site immediately and do not Access Site again.
3.1 AGE REQUIREMENT: SITE NOT FOR USE BY MINORS. Site is for use only by users who are old enough to form legally binding contracts. You are required to discontinue use immediately if You are under eighteen (18) years of age.
3.1 LOCALITY REQUIREMENT: SITE NOT FOR USE BY ANYONE OUTSIDE OF THE UNITED STATES. Site is for use only by users who are physically present in the United States of America at all times during which they Access Site. (Unhappy with this provision ? You can opt-out.)
4. CHANGES TO TOU.
Company reserves the right to change TOU at any time, with or without prior notice to You or any third party. Changes take effect at the moment they are available for viewing through Site. By Accessing Site after any TOU changes have been made available for viewing through Site, You signify your acceptance of these changes. (Unhappy with this provision ? You can opt-out.)
5. SERVICES, SUBSCRIPTION, FEES AND
WAIVER OF FEES.
5.1 SITE DESCRIPTION. Site may provide means by which You may post messages for others, read messages posted by others, and peruse other content supplied by Company or third parties. The Site may also provide electronic purchasing ("ecommerce") opportunities by which You may buy goods from Company or from a third party. Company may publish email newsletters from time to time. Subscribers to such services agree to receive such newsletters periodically at such times as Company deems appropriate to circulate them, and such materials may contain promotional material from Company or third parties. You may unsubscribe from the given email newsletter mailing list at any time.
5.2 SITE USAGE FEE. If the Site Usage Fee is not waived for you (see §1.1 above), You agree to pay a per-user Site Usage Fee of FOUR HUNDRED NINETY-NINE DOLLARS (US$499.00) per calendar month or any portion thereof during which You Access Site. (Unhappy with this provision ? You can opt-out.)
5.2 ACCOUNT CONFIRMATION. You agree to provide valid and complete contact information for Yourself and to be contacted by Company or, through Company's "Each One Reach One" feature, to contact and be contacted by one other user of Site, by email or phone, solely for the purpose of confirming your identity and contact information. (Unhappy with this provision ? You can opt-out.)
6. TERMINATION OF SERVICES.
Site may be terminated or modified at will by Company without notice to You or any third party. You may be individually denied use of Site at any time by Company at the sole discretion of Company and without any prior notice. If You are notified by Company that You are barred from Site, this means that you are prohibited from using Site again. If you receive such notice, do not Access Site again under any circumstances. After being barred, barred users remain bound by the terms of the TOU under which they most recently Accessed Site. If You choose to Access Site after being barred, syou thereby signify your agreement to pay the Site Usage Fee. (Unhappy with this provision ? You can opt-out.)
By Accessing Site, You agree to the following terms regarding Your conduct:
7.1 OFFENSIVE CONTENT. You will not post Any offensive content on Site or post any links to or URLs of content which is Offensive. "Offensive" content includes:
(Unhappy with this provision ? You can opt-out.)
7.2.1 SPAM. You will not "Spam" any user
of the Site. "Spam" means to send any unsolicited email for any
purpose. You agree that You will not email anyone who posts a message
on Site regarding any matter other than that which pertains to his or
her posting without the prior consent of the message poster. You
agree and acknowledge that such actions would be harmful to Company
and its commercial reputation and that Company is entitled to
injunctive relief and damages in the event that You spam any user of
7.2.2 LIQUIDATED DAMAGES FOR SPAM. You also agree to pay damages of TWO HUNDRED FIFTY DOLLARS (US$250.00) per email directly to Company for each and every instance in which a third party receives a spam email from You as the result of posting on the Site or participating in the Site community. This remedy will be in addition to and will not be exhaustive of, in lieu of, or prejudicial to other remedies available to Company, including injunctive relief. You agree that receipt of substantially the same email from You by two or more people who do not know You personally and which is not related to the subject matter of the Site constitutes prima facie evidence of spam. (Unhappy with this provision ? You can opt-out.)
7.3 You will not post any other person's contact information or other personal information on the Site. (Unhappy with this provision ? You can opt-out.)
7.4 You will not post any content to that infringes the intellectual property rights or other rights of any third party.
7.5 You will not post for sale any property which You do not own or do not have the right to sell. You will not post for sale on the Site any stolen property, any jointly owned property which the other owners to do not agree to sell, any property which is illegal to own or to sell, or any property which cannot be transferred as the result of a court order or other legal proceeding or decree. Moreover, You agree not to sell or attempt to sell to any person You believe or know to be under the age of eighteen (18). You also agree not to sell anything that requires a license to own or operate.
7.6 You will not post any confidential or "trade secret" information, whether owned by You or another. By posting information on the Site, You grant a perpetual, irrevocable and absolute license to Company to, without limitation, use, sell, duplicate, publish or modify said information. This grant constitutes a substantial license of copyrights and publicity rights to Company, and this license is sub-licensable through multiple tiers and transferable at the sole discretion of Company.
7.7 You will not collect or "harvest" email addresses or any other contact information from the Site.
7.8 You will not hold yourself out as being associated with, a representative of, or endorsed by Company or the Site.
8. INDEMNIFICATION, LIMITATION OF LIABILITY, DUTY TO
8.1 DUTY TO INDEMNIFY. You shall indemnify Company, its officers, its members, its employees, its parent or subsidiary companies, its agents, its sponsors and its affiliates against any and all claims or demands made by or liabilities to any third party resulting from Your use or misuse of the Site, including, without limitation, Your posting of content on the Site, Your entering into transactions with other users of the Site, Your contacting others as a result of their posting(s) on the Site, Your infringement of a third party's intellectual property or other rights, or Your failure to deliver goods or payment to other users of the Site. (Unhappy with this provision ? You can opt-out.)
8.2 DUTY TO DEFEND. You agree to defend Company at Your sole expense against any and all legal actions brought against or threatened against Company as the result of or pertaining to Your use or misuse of the Site. This duty shall include, without being limited to, the payment by You of all attorney's fees, expert witness fees, travel and accommodation expenses and court costs incurred by Company in any such action or threatened action. Expenses will be paid in advance, and reimbursement of attorney's fees and witness fees shall be paid within fourteen (14) days of submission of actual costs to You by Company. (Unhappy with this provision ? You can opt-out.)
8.3 DUTY TO HOLD HARMLESS AND TO DEAL WITH OFFENDING PARTY ONLY. You agree that, in the event of infringement of Your intellectual property rights or other rights by another Site user or the contractual default of another Site user, Your sole and exclusive remedy and cause of action is and shall be against said user and that You shall hold Company harmless for any injury resulting therefrom. You further agree to hold Company harmless for any and all liabilities to third parties incurred by You as the result of Your use or Access of Site. (Unhappy with this provision ? You can opt-out.)
8.4.1 LIMITATION OF LIABILITY. Companys total liability to You for any cause of action arising out of Site or Your Access of Site, whether sounding in equity or law, in tort or contract, shall be limited to the lesser of (i) US$250 or (ii) the actual U.S. dollar value of damages. This limitation shall apply even if Company was negligent and/or the loss was foreseeable. (Unhappy with this provision ? You can opt-out.)
8.4.2 Without limiting the foregoing, Company shall not be liable to You for any special, direct, indirect, incidental, or consequential damages resulting from the use of, the misuse (whether by You or another) of or the inability to use Site, including, without limitation, damages for lost profits, business interruption, endangerment, infringement or emotional harm. The foregoing provision includes, without limitation, that Company shall not be liable for the cost of procurement of substitute goods or services or any costs or losses resulting from (a) any goods or services purchased or obtained through use of the Site or (b) messages received through use of the Site or (c) transactions entered into through use of the Site or (d) content viewed on the Site, whether posted by Company or by a third party, such as another Site user. Company shall not be liable for any losses resulting from unauthorized access to or alteration of Your transmissions or data, including but not limited to, damages for loss of profits, use, data or other intangibles, even if Company has been advised of the possibility of such losses and even if Company has been negligent. (Unhappy with this provision ? You can opt-out.)
8.5 AGREEMENT TO SETTLE. You agree that any and all actions brought by You against Company in any forum and for any cause of action will be immediately settled and dismissed on Your own motion by You upon the payment to You by Company of two hundred fifty dollars (US$250.00). Such payment will be made solely at the discretion of Company, and Your deposit or cashing of said payment shall signify that all claims against Company that have accrued to the date of said payment have been settled and are waived by You, forever barred and shall be dismissed with prejudice. If made, such a payment by Company does not signify liability or serve as an admission of fault by Company. (Unhappy with this provision ? You can opt-out.)
9.0 DISCLAIMER OF WARRANTIES.
9.1 SITE IS PROVIDED "AS-IS" ONLY. Site is only a venue for the exchange of information. You expressly agree that use of the Site is at Your sole risk. The Site is provided on an "AS IS" and "AS AVAILABLE" basis only. Company expressly disclaims all warranties of any kind, express or implied, including, without limitation, any warranty of title, merchantability and fitness for a particular purpose. (Unhappy with this provision ? You can opt-out.)
WITHOUT LIMITATION, COMPANY MAKES NO WARRANTY THAT SITE WILL BE SATISFACTORY, USEFUL OR FUNCTIONAL TO YOU OR THAT THE AVAILABILITY OF SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE FROM OFFENSIVE CONTENT OR ERROR-FREE. COMPANY MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE. COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR NOT, WHICH MAY RESULT FROM THE UNAVAILABILITY OR MALFUNCTION OF SITE OR FROM YOUR INTERACTIONS WITH OTHER USERS OF SITE OR FROM CONTENT WHICH APPEARS ON SITE. (Unhappy with this provision ? You can opt-out.)
9.2 DATA RISKS. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of Site is used only 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. (Unhappy with this provision ? You can opt-out.)
9.3 INFORMATION RISKS. You understand and agree that Company does not guarantee the accuracy or completeness of any information provided by Site users or provided in connection with Site. Company is not responsible for any errors or omissions or for the results obtained from the use of such information. Information is provided with the understanding that neither Company nor Site users, are engaged in rendering legal, medical, counseling or other professional services or advice. (Unhappy with this provision ? You can opt-out.)
Company shall not be responsible for any loss or damage caused, or alleged to have been caused, directly or indirectly, by the information or ideas contained, suggested or referenced in the Site. No advice or information, whether oral or written, obtained by You from Company or through Site shall create any warranty not expressly made herein. (Unhappy with this provision ? You can opt-out.)
9.4 GOODS/SERVICES RISKS. Company makes no warranty regarding any goods or services purchased or obtained through Site or any transactions entered into through the Site. Company is not responsible for any items listed by Site users nor for the conduct of or content posted by Site users. (Unhappy with this provision ? You can opt-out.)
10. WAIVER OF CLAIMS.
By Accessing Site, You signify Your agreement to waive and do thereby waive all claims which have accrued against Company, its officers, employees, agents, parents, subsidiaries, directors, owners, stakeholders, sponsors, partners and affiliates prior to and up to the moment of said Access, regardless of the gravamen of the action, whether in law or equity, and such claims are forever barred. (Unhappy with this provision ? You can opt-out.)
11.0 LEGAL PROCEEDINGS.
11.1 CHOICE OF LAW. You agree that this contract was formed in the state of California and that You have had sufficient contacts with Company in California to support in personam jurisdiction in California, and You also submit to the personal jurisdiction of the California courts. You agree that California law and/or U.S. federal law shall exclusively govern all disputes between You and Company. (Unhappy with this provision ? You can opt-out.)
11.2 CHOICE OF FORUM. You further agree that all legal actions regardless of cause of action, including, without limitation, actions for tort or breach of contract, whether sounding in law or equity, will be brought and conducted exclusively in the state and federal courts located within fifty (50) miles of Los Angeles, California. You agree that all actions brought in any court or other judicial body other than those specified in the foregoing fail to state a claim upon which relief can be granted, or, alternatively, the claims specified therein are waived by You and forever barred. (Unhappy with this provision ? You can opt-out.)
11.3 DUTY TO NOTIFY. You agree to notify Company of any legal action which You intend to bring against or involving Company no less than thirty (30) days prior to the filing of the action. Such notification must be actual, and must be made by certified "return receipt" mail or some other form of correspondence that requires a signature verifying receipt. You agree that any action brought without actual notice provided to Company pursuant to the foregoing fails to state a claim upon which relief can be granted and must and shall be dismissed. (Unhappy with this provision ? You can opt-out.)
11.4 LIMITATIONS PERIOD. All actions between You and Company must be brought within one (1) year of accrual of the underlying cause of action, and all claims not so brought are waived and forever barred. (Unhappy with this provision ? You can opt-out.)
11.5 AGGREGATION OF CLAIMS. You agree that if You bring any legal action against Company, all claims which have accrued at the time of the filing of the action and which are not included as claims in the action are waived by You and forever barred. (Unhappy with this provision ? You can opt-out.)
11.6 COSTS. In the event that, despite the terms of this Agreement, judgment is entered against Company in excess of two hundred fifty dollars (US$250.00), You agree to pay the litigation costs of both parties incurred during or as a result of the litigation, including attorney's fees, which will be due and payable at the time of request by Company. Company will be reimbursed all costs and attorney's fees within fourteen (14) days of said judgment. In the event that (i) You bring any action against Company in a different forum from that specified above or that does not otherwise conform to the above provisions or (ii) You refuse to settle any action or claim as specified above, You agree to pay the litigation costs of both parties, including attorney's fees, regardless of judgment or outcome of the action. (Unhappy with this provision ? You can opt-out.)
Last Modified: January 21, 2006