Terms and
Conditions
BestAmateurGirlCam.Com
WWW.BESTAMATEURGIRLCAM.COM
Effective Date: January 1st 2005
Last Modified: July 28th 2010
1.
Preliminary Provisions:
1.1.
Our websites are different from many other sites on
the Internet as they contain communications provided by users and third parties
that may be outside of our direct control.
1.2.
Through the use of these Terms and Conditions, we are
placing legal conditions on your use of these websites (www.bestamateurgirlcam.com, hereinafter the
“Websites”), and making certain promises to you.
1.3.
Our first condition is that you must agree to all
of the conditions in this set of Terms and Conditions of use (hereinafter
“T&C’s” or “Agreement”). You do not need
to use our Websites, therefore if you do not wish to be bound by each and every
provision in this Agreement, then you are not welcome to use these Websites and
should leave and use another service.
1.4.
You may not unilaterally disregard any portion of
this Agreement. However, if there is a
particular portion of this Agreement that you wish to avoid, you may contact us
to negotiate a separate agreement BEFORE you use the Websites. We do not guarantee that such negotiations
will be successful. Nevertheless, if you
wish to discuss your own personalized Agreement, please contact us or have your
attorney do so.
1.5.
If you do not understand all of the terms in this
Agreement, then you should consult with a lawyer before using the Websites.
1.6.
These Websites are for adults only. If you are under the age of eighteen (18),
sorry, you are not to use these Websites at all unless and until we receive
written confirmation from your parents that they will a) allow you to use these
Websites, and b) that they will supervise your use of the Websites.
1.7.
Party
Definitions
1.7.1. “Us,” the service provider – BestAmateurGirlCam.Com
is the service provider of www.bestamateurgirlcam.com. It should be obvious,
but for the sake of legal clarity, when this Agreement uses first-person pronouns such as “us,” “we,” “our,” “ours,” etc., those first-person
pronouns are referring to
BestAmateurGirlCam.Com as the service
provider for www.bestamateurgirlcam.com.
1.7.2. “You,” the User – As a User of these
Websites, this Agreement will refer to
the User as “You” or through any second-person pronouns, such as “Yours,” etc.
Hereinafter, the User of the
Websites shall be referred to in applicable second-person
pronouns.
1.7.3. When
the term “Websites” is used in this set of T&C’s, it means www.bestamateurgirlcam.com, unless the
Agreement specifically says otherwise.
1.8.
Consideration
– Consideration for Your acquiescence to all of the provisions in this
Agreement has been provided to You in the form of allowing You to use Our
Websites and Our Services.You agree
that such Consideration is both adequate, and that it is received upon Your
viewing or downloading any portion of Our Websites.
1.9.
Revisions to
this Agreement
1.9.1. From
time to time, We may revise this Agreement.
We reserve the right to do so,
and You specifically agree that We have this unilateral right.You agree that
all modifications or changes to this Agreement are in force immediately upon posting.The updated or edited version supersedes any
prior versions immediately upon
posting, and the prior version is of no continuing legal effect.
1.9.2. If
We change anything in this Agreement, We will change the “last modified date” at the top of this
Agreement. You agree to re-visit this
web page on a weekly basis,
and to use the “refresh” button on Your browser when doing so.Upon
each visit, You agree to note the date of the last revision to this Agreement.If the “last modified” date remains unchanged
from the last time You reviewed
this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read
it.If the “last modified” date has changed, then You can be certain that
something in the Agreement has been changed,
and you agree that you will re-review the Agreement in its entirety and that You will agree to its terms or
immediately cease use of any Websites in the Network.
1.9.3. Waiver
– if You fail to re-review this Agreement as required to determine if any of the terms have changed,
You assume all responsibility for such omissions
and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended
terms.We are not responsible for Your
neglect of Your legal rights.
2.
Acceptance and Affirmation
2.1.
You must agree to all of the terms in this
Agreement before using the Websites or Our services.
2.2.
How You can and will demonstrate Your affirmative
acceptance of all of the terms in this Agreement:
2.2.1.
If You click any link, button, or other device,
provided to You in any part of Our
Websites’ interface, then you have legally agreed to all of these T&C’s; or
2.2.2.
By using any of Our services in any manner, You
understand and agree that We will
consider any use of Our Websites as Your affirmation of Your complete and unconditional acceptance
to all of the terms in this Agreement.
3.
Access Fees and User Status
3.1.
Access
and limited license - All
Users may access certain public areas of the Site. You understand that all We
are selling You is access to Our services as We provide them from time to time.
You need to provide Your own access to the internet, and any fees that You
incur to access our Site are Your sole responsibility. We are not providing any
hardware nor software to You - and You need to purchase or license the
necessary hardware and software to access the Site. This User Agreement covers
all public and non-public areas of the Site.
3.2.
Subject to all of the User Agreement and recognizing that and Our
Services, the Publisher grants You a limited, nonexclusive, nontransferable,
revocable, personal license to access and use the Site and the Materials
contained therein. Publisher provides the Materials on this Site for the
personal, non-commercial use by viewers, fans, visitors, subscribers and/or
potential subscribers of said Site. Users of this Site are granted a single
copy license to view Materials (on a single computer only).
3.3.
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.
3.4.
Fees for Members and Types of Memberships - Our Members are provided
our services by paying a monthly fee. Members are not billed per use, for as
long as they remain in good standing. The following rates are for ease of
reference. A more current list of our rates and charges appears on the site
here (must be logged in as a user).
3.4.1.
Free Membership - Those who sign up for a Free Membership, are not
charged a fee, but have limited membership privileges, yet are required to
adhere to all membership responsibilities.
3.4.2.
Per Minute Membership – Members may purchase minutes that they can use
on our site to interact with with live models, video archives, messaging, etc.
3.4.3.
VIP Membership - You understand that if You enroll for a VIP
membership, we employ an automatic rebill procedure in order to provide
continuity of service. Paid Membership will allocate your minutes on a monthly
basis.
3.4.4.
Credit Packages - On initial credit purchase you have the following options to
choose from:
- Platinum Membership $39.95 / 45 Credits (recurs every 30 days until cancelled)
- Gold Membership $29.95 / 30 Credits (recurs every 30 days until cancelled)
- Silver Membership $24.95 / 25 Credits (recurs every 30 days until cancelled)
- Basic Membership $29.95 / 30 Credits (non-recurring)
Non-credit Purchase:
- Show Ticket $8.95 / Good for one viewing
After initial credit purchase:
If you purchased the "Basic Purchase" on initial sale you will be presented with the same
buy options again when you go to the "Buy Credits" page. However you have the option within the
free chat and in a private room to purchase additional credits in increments of $20, $40, and $60
increments.
If you purchased a "Membership" package on initial sale you will be presented with 3 new
non-recurring purchase options when you return to the "Buy Credits" page which are:
- $59.95 / 63 Credits
- $29.95 / 30 Credits
- $19.95 / 20 Credits
Regardless of what initial purchase you chose you always have the option to purchase quickly
in free chat or a private room in increments of $20, $40, and $60.
3.4.5.
Credits Applied to Account - Once a purchase has been made credits are applied to
the account instantly after purchase. If you do not receive your credits after a purchase please
contact customer support so your purchase issue can be resolved.
3.5.
We
have the right to terminate Your Membership at any time, and will do if so we
discover that you have provided us with any information that is not current,
truthful, and complete.
3.6.
You
may participate in both our Per Minute Membership and VIP Membership
concurrently and will be charged accordingly.
3.7.
You
may never sell, transfer or sell your membership to a third party. Membership
is a single-user license. You are not authorized to share any of Our Materials
with any person who does not have their own membership. If you do so, both You
and the unauthorized viewer/User are jointly and severally liable for any
damages or liquidated damages or other fees that will be due if there is no
Membership in place for the unauthorized User.
3.8.
You
acknowledge that We may automatically generate invitations to complete
membership applications for our other partner or affiliated sites when you join
the Site. However, you will not be charged for other memberships unless you
affirmatively choose to complete the membership application and register for
another website.
3.9.
Membership fees are non-refundable, and You are responsible for any
credit card charge backs, dishonored checks, and any related fees that We incur
with respect to your account.If Your
membership is terminated, no portion of membership fees already paid will be
returned.If You fail to reimburse Us
for any credit card chargebacks, dishonored checks, or related fees within 30
days of our initial demand for reimbursement, You agree that You will pay Us
$100 in additional liquidated damages for each fee incurred.
3.10.
All credits purchased are
valid and usable for the lifetime of the account.
4.
Special Considerations Regarding Minors
4.1.
Age of
Majority.In order to use the
Websites or any services provided by Us, You must have attained the age of
majority in your jurisdiction.You
represent and warrant that You are at least eighteen (18) or twenty-one (21)
years of age, depending on the age of majority in Your jurisdiction, and that
You have the legal capacity to enter into this Agreement.
4.1.2.
We specifically disclaim any responsibility or
liability for any misrepresentations
regarding a User’s age.
4.1.3.
You
represent and warrant that You will not allow any minor access to these Websites. Users
should implement parental control protections, such as computer hardware, software, or filtering services,
which may help users to limit minors’
access to harmful material.You
acknowledge that if Your computer
can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by
minors.You additionally acknowledge that if You are a parent, it is
Your responsibility, and not Ours, to
keep Our erotic content from being displayed to Your children or wards.
4.2.
WE HAVE A
ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY
REGARDING PEDOPHILES, PEDERASTS OR ANY PEDOPHILIC, PEDERASTIC, OR SIMILAR
RELATED ACTIVITY.
4.2.1.
All of Our
webcam performances are provided by persons over the age of eighteen (18).We
take great measures to ensure that no underage
models appear on Our
Websites.
4.2.2.
If You seek
any form of child pornography (including so-called “virtual” child pornography), You must exit these Websites
immediately.We do not provide this kind of material and We do not
tolerate those who provide this kind of
material nor do we tolerate consumers of this kind of material.
4.2.3.
In order to
further Our zero-tolerance policy You, even as a User, agree to report any images that appear to depict minors on
Our Websites.If You see any other depictions that are questionable, You agree
to report these images by emailing
us at abuse@webcamclub.com.
4.2.4.
Include with
Your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken.
4.2.5.
We
enthusiastically cooperate with any law-enforcement agency investigating child pornography.If You suspect other outside websites are participating in unlawful activities
involving minors, please report them to http://www.asacp.org.
5.
Images and
Content
5.1.
Our Websites provide live and pre-recorded webcam
video content, as well as text, images, graphics, data, messages, and other
information (collectively, “Materials”).
5.2.
You acknowledge and stipulate that all of the
Materials are expressive content that is fully protected by the First Amendment
to the United States Constitution.
5.3.
You acknowledge and understand that some of the
Materials may contain graphic visual depictions of sexual activity and nudity,
graphic audio portions of the same kind of content, and descriptions of
sexually oriented and sexually explicit activities. You acknowledge that You are aware of the
nature of the Materials provided by Our Websites and that You are not offended
by such Materials, and to the contrary, that You are accessing these Websites specifically
because You enjoy such expressive content and You wish to view such
Materials. You stipulate that you access
these Websites freely, voluntarily, and willingly, and for Your own personal
enjoyment.
5.4.
You agree not to use or access the Websites if
doing so would violate the laws of Your state, province, or country.
5.5.
In the event that any court finds that any third
party communication or third party content on Our Websites falls outside of the
realm of Section 230 of the Communications Decency Act (“CDA”), this shall not
be deemed to be a waiver of any legal protections provided by CDA § 230 for any
and all other content posted on Our Websites.
6.
Restrictions on Use of Website
6.1.
You agree that You will only use the Websites for
purposes expressly permitted and contemplated by this Agreement. You may not use the Websites for any other
purposes without Our express prior written consent.
6.2.
Without Our express prior written authorization,
You may not:
6.2.1.
Duplicate any part of the Webites or the materials
contained therein (except as
expressly provided elsewhere in this Agreement);
6.2.2.
Redistribute or create any derivative works based
on the Websites or any of the materials
contained therein. You agree that any
such use is NOT “fair use”;
6.2.3.
Use the Websites 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”;
6.2.4.
Remove any copyright or other proprietary notices
from the Websites or any of the
Materials contained therein;
6.2.5.
Circumvent any encryption or other security tools
used anywhere on the Websites
(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 Websites);
6.2.6.
Use our Materials in any kind of public performance
or display Our Materials to an
audience outside of Your home.
6.2.7.
Use any technology to record any content broadcast
on Our Websites.
6.3.
You agree to all of the terms of Our Acceptable Use
Policy, as outlined below:
6.3.1.
Acceptable Use Policy: You agree and understand that Our
Website permits You to use Our
services in order to post content and to communicate with other Users.
You agree that You will not use Our services to post or distribute content that falls into the
following categories:
6.3.1.1.
Unlawful, harmful, threatening, abusive, harassing,
defamatory, invasive of another’s privacy or right to publicity, or harmful to
minors in any way, shape, or form;
6.3.1.2.
That might be considered to be impersonating
another person or legal entity;
6.3.1.3.
Any posts with personally identifying information
about another person without that person’s prior explicit consent;
6.3.1.4.
That constitutes SPAM or bulk posting of commercial
advertisements for commercial interests;
6.3.1.5.
That infringes upon any trademark, copyright, or
other intellectual property rights of any party;
6.3.1.6.
You also agree to immediately cease and desist from
any contact with any person who so requests such cessation;
6.3.1.7.
You agree that You will not use Our services to
“stalk” or otherwise harass any other person;
6.3.1.8.
You agree that You will not use Our services in
order to collect any personal data about other users;
6.3.1.9.
You agree that You will not use Our services in
order to conduct any illegal activities at all;
6.3.1.10.
You agree that You will not use Our services in
order to view, transmit, traffic in, or in any other way interact with, provide
to any other person, or receive child pornography in any way;
6.3.1.11.
You agree that You will not use Our services in
order to view, transmit, traffic in, or in any other way interact with, provide
to any other person, or receive obscene materials in any way;
6.3.1.12.
You agree that You will not use Our services in
order to view, transmit, traffic in, or in any other way interact with, provide
to any other person, or receive drugs or other illegal substances in any way;
6.3.1.13.
Any violation of Our Acceptable Use Policies as
provided for in this Agreement shall subject You to liquidated damages of
$5,000.00 for each and every violation.
In Our sole discretion, We may choose to provide You with a warning
before assessing damages. Additionally,
We may, in Our sole discretion, assign any such damage claim to a third party
who has been wronged by Your conduct.
6.3.1.14.
These liquidated damages are not a penalty, and
they are an attempt by the parties to reasonably ascertain the amount of actual
damage that could occur from such violations.
Both parties hereby agree that this is a minimum, and actual damages may
be more.
7.
Disclaimer
and Indemnification
7.1.
If We determine that You or any User has used Our
services in violation of any law, Your ability to use the Websites may be
terminated immediately and We have every right to voluntarily cooperate with
law enforcement or private aggrieved parties that we may be legally compelled
to do so. We hereby disclaim any
liability for damages that may arise from any User providing any services for
any purpose that violates any law. You
do hereby agree to defend, indemnify and hold Us harmless from any liability
that may arise for Us should You violate any law.
7.2.
You also agree to defend and indemnify Us should
any third party be harmed by Your actions or should We be obligated to defend
any claims including, without limitation, any criminal or civil action brought
by any party.
7.3.
Our Websites contain 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 Websites should You find them
offensive.
7.4.
You agree to defend, indemnify, and hold harmless
BestAmateurGirlCam.Com, its officers, directors, shareholders, employees,
independent contractors, telecommunication providers, and agents, from and
against any and all claims, actions, loss, liabilities, expenses, costs, or
demands, including without limitation legal and accounting fees, for all
damages directly, indirectly, and/or consequentially resulting or allegedly
resulting from Your, or You under another person’s authority (including without
limitation to governmental agencies), use, misuse, or inability to use the
Websites or any of the Materials contained therein, or Your breach of any part
of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully
(at Your expense) in the defense of such claim or suit. We reserve the right to participate in the
defense of such claim or defense at Our own expense, and choose Our own legal
counsel; however, We are not obligated to do so.
7.5.
Pursuant to the Communications Decency Act (“CDA”),
47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You
acknowledge and understand that We operate, through the Websites, as an
interactive computer service provider. Thus, We are immune from, and
cannot be held responsible for, claims arising from the publication of
third-party content (including third-party User content), appearing on the Websites.
We do not create such content, and We are not responsible for the publication
or remarks of third-parties that may arguably rise to the level of being
actionable under federal or state laws including, but not limited to, the
publication of material that might be considered defamatory, or violative of
privacy or publicity rights. Note, that
federal law allows Us to remove any content found to be offensive, defamatory,
obscene or otherwise violative of Our policies, without impacting Our status as
a computer service provider. Nothing contained in this paragraph is
intended to limit or alter the immunity from claims provided by Section 230 of
the Communications Decency Act.
7.6.
You acknowledge and agree that all webcam video communications and
transmissions conducted through a member account during premium services is
recorded and archived for use in combating fraud or for use as evidence in
any civil or criminal proceeding in which is may be relevant. You
specifically waive and release Us from any claims arising out of such
recordation, archiving and subsequent use as outlined above. While we are
committed to protecting your privacy, We reserve the right to cooperate in
any claim or legal proceeding by releasing archived video footage of member
webcam sessions consistent with state and federal law.
8.
Intellectual
Property Information
8.1.
BestAmateurGirlCam.Com and the aforementioned name
of the Websites are Our service mark(s) and/or trademark(s).
8.2.
Other companies’ product and service names referenced
herein may be trademarks and service marks of their respective companies and
are the exclusive property of such respective owners, and may not be used
publicly without the express written consent of the owners and/or holders of
such trademarks and service marks.
8.3.
Copyright – These Websites belongs to Us, and we either
own or have rights to display all of the materials thereupon. You may not use any of Our materials without
Our express written consent.
9.
Limitation of Liability
9.1.
In no event shall We (or Our licensors, agents,
suppliers, resellers, service providers, or any other subscribers or suppliers)
be liable to You, or any other third party for any direct, special, indirect,
incidental, consequential, exemplary, or punitive damages, including without
limitation, damages for loss of profits, loss of information, business
interruption, revenue, or goodwill, which may arise from any person’s use,
misuse, or inability to use the Websites or any of the Materials contained
therein, even if We have been advised of the probability of such damages. This
is for any matter arising out of or relating to this Agreement, whether such
liability is asserted on the basis of contract, tort or otherwise, even if We
have been advised of the possibility of such damages.
9.2.
In no event shall Our maximum total aggregate
liability hereunder for direct damages exceed the total fees actually paid by You
for use of a Website for a period of no more than one (1) month from the
accrual of the applicable cause or causes of action. Because some jurisdictions prohibit the
exclusion or limitation of liability for consequential or incidental damages,
the above limitation may not apply to You.
10.
DEFAMATION
OR INVASIVE MATERIAL POLICY:
10.1.
We provide an interactive computer service, and
thus we have no liability for user-posted content due to Section 230 of the
CDA. Nevertheless, we recognize that
despite this protection, there may occasionally be content posted by Our Users
that is unappreciated by the subject of the User-posted content. It is not Our
intention to cause anguish to any person nor harm to any entity, nor to allow
through inaction such harm to occur. Accordingly,
it is Our policy to respond respectfully to any complaints about User posted
content, or about content that We might have provided.
10.2.
If you feel damaged by any User-posted content, or
content provided by Us, We agree to take reasonable measures to comply with any
reasonable requests. Even if You are a
public official, public figure, or libel-proof person, We do care about Your
feelings and reputation. Therefore, We
have instituted this Policy.
10.3.
You agree that if You have any complaint about any
content on Our Websites, including (but not limited to) a complaint or claim of
defamation (libel or slander), invasion of privacy, false light, trademark
infringement, right of publicity claims, or any related or similar tort, that You
will provide notice to us by mail or fax to:
For US Customers
BestAmateurGirlCam.Com
c/o Weston, Garrou, Walters &Mooney
781 Douglas Avenue
Altamonte Springs, FL 32714
Fax: (407) 774-6151
10.4.
You agree that We shall have ten (10) business days
after RECEIPT of said notice to evaluate Your concerns.
10.5.
After evaluating Your concerns, We will either
inform You that We do not believe Your concern is valid, or We will request Your
preference regarding an opportunity to cure Your concerns. This cure may include one of the following:
10.5.1.
We may offer to delete the offending material.
10.5.2.
We may offer to modify the offending material.
10.5.3.
We may offer You the opportunity to publish a
rebuttal to the offending
material.
10.5.4.
We will engage You and seek any other alternative resolution
that will mitigate Your damaged
legal interests - whether or not We are legally required to do so.
10.5.5.
We may provide You with some or all identifying information
We may have about the actual culprit
(if the content was User-posted), but We are under no obligation to do so, and expressly reserve the right not
to.
10.6.
You acknowledge and agree that upon transmission of
Your complaint to us, You will be considered to have engaged in settlement
discussions with Us, and neither party will initiate formal legal action while
non-adversarial resolution is in progress. You agree that You will not file
suit unless and until We issue a statement to You that We have taken Our final
action, and that no further action will be taken without adversarial
proceedings. At that point, You may proceed with arbitration as provided for
under this Agreement.
10.7.
You acknowledge that once You accept any of Our
offers of non adversarial resolution, that You irrevocably waive any and all
possible claims for any allegedly offending material Our Websites and that if
You do bring any action against Us that You hereby stipulate that You will bear
Your own costs and fees incurred in the action, regardless of the outcome of
that action, and that You stipulate that Your damages will be limited to $1,
and no more, and that You hereby acknowledge that such amount of $1 is
sufficient and adequate.
10.8.
You understand that no part of this Agreement obligates
Us to go beyond that required by law, and this Agreement is in place for Your
convenience. If We believe that Your
requests are unreasonable, We reserve every right to terminate discussions with
or file suit against You to recover any legal fees incurred due to harassing or
unreasonable requests.
11. General
Provisions
11.1.
Governing
Law. This Agreement and all matters
arising out of, or otherwise relating to, this Agreement shall be governed by
the laws of the Orange County, Florida, 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 Orange County, Florida.
11.1.1.
All parties
to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any
services or business interactions between
the parties that may be subject to this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.
11.1.2.
The parties
agree to exclusive jurisdiction in, and only in, Orange County, Florida
11.1.3.
The parties
agree to exclusive venue in, and only in, Orange County, Florida.
11.1.4.
The parties
additionally agree that this choice of venue and forum is mandatory and not permissive in
nature, thereby precluding any possibility of litigation
between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that
specified in this paragraph.
11.1.5.
All parties
hereby waive any right to assert the doctrine of forum non-conveniens
or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this
paragraph or with respect to any dispute
under this Agreement whatsoever.
11.1.6.
All parties
stipulate that the state and federal courts located in Orange County, Florida shall have personal
jurisdiction over them for the purpose of litigating
any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between
the parties contemplated thereby.
11.1.7.
Each party
hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against
it, as contemplated by this paragraph by registered
or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for
the giving of notices as set forth in this Agreement.
11.1.8.
Any final
judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of
such final judgment and may be enforced in
other jurisdictions in any manner provided by law if such enforcement becomes necessary.
11.2.
Binding Arbitration. If there is a
dispute between the parties arising out of or otherwise relating to this
Agreement, the parties shall meet and negotiate in good faith to attempt to
resolve the dispute. If the parties are
unable to resolve the dispute through direct negotiations, then, except as
otherwise provided herein, either party may submit the issue to binding
arbitration in accordance with the then-existing Commercial Arbitration Rules
of the American Arbitration Association. Arbitral Claims shall include,
but are not limited to, contract and tort claims of all kinds, and all claims
based on any federal, state or local law, statute, or regulation, excepting
only claims under applicable worker’s compensation law, unemployment insurance
claims, actions for injunctions, attachment, garnishment, and other equitable
relief. The arbitration shall be
conducted in Orange County, Florida, and conducted by a single arbitrator, knowledgeable
in Internet and e-Commerce disputes.The
arbitrator shall have no authority to award any punitive or exemplary damages;
certify a class action; add any parties; vary or ignore the provisions of this
Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion
setting forth all material facts and the basis of his or her decision within
thirty (30) days of the conclusion of the arbitration proceeding. THE
PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO
ARBITRAL CLAIMS.
11.3.
The Arbitrator shall have no authority to award any
punitive or exemplary damages; certify a class action; add any parties; vary or
ignore the provisions of this Agreement; and shall be bound by governing and
applicable law. The arbitrator shall
render a written opinion setting forth all material facts and the basis of his
or her decision within thirty (30) days of the conclusion of the arbitration
proceeding. THE PARTIES HEREBY WAIVE ANY
RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
11.4.
No Waiver of
Right to Arbitration. There shall be
no waiver of the right to arbitration unless such waiver is provided
affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this
right to arbitration. No acts, including
the filing of litigation, shall be construed as a waiver or a repudiation of
the right to arbitrate.
11.5.
The First
Amendment Applies to Arbitration Proceedings.
Any arbitration tribunal shall consider the First Amendment to the
United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability
of the First Amendment’s protection of free speech, expression, and
association, and both parties stipulate that case law interpreting the First
Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
11.6.
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.
11.7.
Severability. If for any reason a court of competent
jurisdiction or an arbitrator finds any provision of this Agreement, or any
portion thereof, to be unenforceable, that provision will be enforced to the
maximum extent permissible and the remainder of this Agreement will continue in
full force and effect.
11.8.
Attorneys’
Fees. In the event any Party shall
commence any claims, actions, formal legal action, or arbitration to interpret and/or
enforce any of the terms 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 appeal.
11.9.
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.
11.10.
No
Waiver. No waiver or action made by
Us shall be deemed a waiver of any subsequent default of the same provision of
this Agreement. If any term, clause or
provision hereof is held invalid or unenforceable by a court of competent
jurisdiction, such invalidity shall not affect the validity or operation of any
other term, clause or provision and such invalid term, clause or provision
shall be deemed to be severed from this Agreement.
11.11.
Headings.
All headings are solely for the convenience of reference and shall
not affect the meaning, construction or effect of this Agreement.
11.12.
Complete Agreement. This Agreement constitutes the entire
Agreement between the parties with respect to Your access and use of the Websites
and the Materials contained therein, and Your Membership with the Websites, and
supersedes and replaces all prior understandings or agreements, written or
oral, regarding such subject matter.
11.13.
Other
Jurisdictions. We make no
representation that the Websites 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 Websites from
such locations do so on their own initiative and are solely responsible for determining
compliance with all applicable local laws.
This document was prepared by Lawrence G.
Walters, Esq., of www.FirstAmendment.com.
Nothing
more follows.
