Terms of Service
Last Updated July 23, 2020
This agreement contains disclaimers of warranties, limitations on liability, releases, a class-action waiver, and the requirement to mediate and arbitrate all claims that may arise under this agreement. These provisions are an essential basis of this agreement.
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.
Minors Prohibited. The Website may contain, or direct you to websites containing, adult oriented content and is not intended 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. 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.
Child Pornography Prohibited. The Company prohibits pornographic content involving minors. The Company only allows visual media of consenting adults for consenting adults on the Website. If you see any visual media, real or simulated, depicting minors engaged in sexual activity on the Website, please promptly report this to the Company at firstname.lastname@example.org. Please include with your report all appropriate evidence, including the date and time of identification. The Company will promptly investigate all reports and take appropriate action. The Company cooperates with any law-enforcement agency investigating child pornography.
Acceptance of Agreement. This terms-of-service agreement is between DNA Entertainment, Inc, a Texas corporation (the "Company"), the owner and operator of www.BrandtsBoys.com (the "Website"), and you, a user of the Website. By using the Website, you agree to this agreement. If you choose to not agree to this agreement, you must not use the Website.
Changes to Agreement
- Right to Change Agreement. The Company may change this agreement (the "Updated Agreement") on one or more occasions.
- Notice of Updated Agreement. Unless the Company makes a change for legal or administrative reasons, the Company will provide reasonable advance notice before the Updated Agreement becomes effective. The Company may notify you of the Updated Agreement by posting it on the Website.
- Acceptance of Updated Agreement. Your use of the Website after the effective date of the Updated Agreement constitutes your agreement to the Updated Agreement. You should review this agreement and any Updated Agreement before using the Website. If you do not agree to the Updated Agreement, your sole remedy is to stop using the Website.
- Effective Date of Updated Agreement. The Updated Agreement will be effective as of the time of posting, or that later date as may be stated in the Updated Agreement, and will apply to your use of the Website from that point forward, except that the Updated Agreement will not apply to continuing disputes or disputes arising out of or relating to events happening before the Updated Agreement’s effective date.
Adult-Oriented Content. 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:
- You are at least 18-years old and have reached the age of majority where you live;
- 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 sexual nature, which may include graphic visual depictions and descriptions of nudity and sexual activity;
- 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;
- 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 the legal right to transmit them to you;
- You are voluntarily requesting adult-oriented materials for your own private enjoyment;
- You are not accessing the Website from a place, country, or location in which doing so would, or could be considered a violation of law; and
- You will not share these materials with a minor or otherwise make them available to a minor.
- Account Creation. You must complete the registration process by providing the Company with accurate information as prompted by the applicable registration form. You also will choose a password and a username. By creating an account, you state that (a) all account registration, and profile information you provide is your own and is accurate; (b) if you previously had an account on the Website, your old account was not terminated or suspended by the Company for violation of this agreement; and (c) your creating an account for your own personal use and you will not sell, rent, or transfer your account to any third party.
- Responsibility for Account. You are responsible for keeping your password and account confidential. Further, you are responsible for all activities that occur under your account. You must notify the Company promptly of any unauthorized use of your account or any other security breach.
- 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.
- Use of Other Accounts. You must not use anyone else’s account at any time.
- 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.
Use of Website
License. During this agreement, the Company hereby grants you a limited, nonexclusive, nontransferable license to access the Website and its content for your personal and noncommercial use in accordance with this agreement. For purposes of this agreement, the following definitions apply,
- "Access" means visit the Website, use its services, and view or download its content.
- "Content" means any material, including the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, communications, profiles, streams, data, and other materials found on the Website.
- "Personal and noncommercial use" means a presentation of the content for which no fee or consideration is charged or received, which takes place in your private residence or, if outside your residence, is limited to a private viewing by you. Personal and noncommercial use excludes any public or private event presentation even if no fee is charged.
Intellectual Property Rights
- Website Ownership. Other than user content, the Website and its entire contents, features, and functionality (including all information, software, text, displays, images, video, audio, and audiovisual combinations and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other providers of the material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. The Company reserves all rights not expressly granted in and to the Website. You will not engage in the use, copying, or distribution of any of the Website other than as expressly permitted.
- Trademarks. The Company’s name, logos, domain names, and the terms BRANDT’S BOYS and BRANDTS BOYS are the Company’s trademarks, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission. In addition, all page headers, custom graphics, button icons, and scripts are the Company’s service marks, trademarks, and trade dress, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission. Other names of actual companies, products, or services mentioned on the Website may be the trademarks of their respective owners and reference to them does not suggest sponsorship, endorsement, or association by or with the Company, or that those owners endorse or have any affiliation with the Website. Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any marks displayed on the Website, meta tags, or any other "hidden text" using marks that belong to the Company and its licensors, without advanced written permission from the Company or the third party who may own the mark.
- You must not engage in any of the following prohibited activities while using the Website:
- copying, distributing, or disclosing any part of the Website in any medium, including by any automated or non-automated "scraping;"
- using any automated system, including "robots," "spiders," "offline readers," etc., to access the Website;
- transmitting spam, chain letters, or other unsolicited email;
- attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Website;
- taking any action that imposes, or may impose at the Company’s sole discretion an unreasonable or disproportionately large load on the Website infrastructure;
- uploading invalid data, viruses, worms, or other software agents through the Website;
- collecting or harvesting any personally identifiable information, including account names, from the Website;
- using the Website for any commercial solicitation purposes;
- impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
- interfering with the proper working of the Website;
- accessing any content on the Website through any technology or means other than those provided or authorized by the Website; or
- bypassing the measures that the Company may use to prevent or restrict access to the Website, including features that prevent or restrict use or copying of any content or enforce limitations on use of the service or the content in it.
- You must not do any of the following while using the Website’s interactive features:
- Harass, stalk, threaten, embarrass, or cause distress or discomfort to the model;
- Use language that could be considered offensive or likely to harass, upset, intimidate, embarrass, alarm, or annoy;
- Transmit any information, data, text, files, links, software, communication, or other materials that a reasonable person would consider to be unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, slanderous, vulgar, obscene, hateful, or racially, ethnically, or otherwise objectionable;
- Create, upload, post, display, publish, or distribute any content that violates another’s copyright, trademark, right of privacy, right of publicity, or other property or personal right (for example, using the name, likeness, image, or other identity of another without proper consent);
- Distribute messages between you and any model;
- Record, rebroadcast, or distribute any video or other content found on the Website;
- Post private or personal information about any person;
- Request personal information from or share your personal information with any model, including financial information, email address, telephone number, or mailing address;
- Request money from, or otherwise defraud, a model;
- Impersonate any person;
- Discuss or engage in any activity that may be considered obscene in your community or may be generally considered obscene worldwide, including pedophilia, the exploitation of children, age-play, incest, rape, extreme violence, genital mutilation, sadomasochistic abuse or bondage, torture, bestiality, necrophilia, urination, defecation, "going to the bathroom," enema play, vomiting, menstrual bleeding, or paraphilia;
- Offer money or other consideration in exchange for sex;
- Promote or advertise prostitution or escort services;
- Promote or advertise firearms or other weapons, tobacco, drugs, or drug paraphernalia;
- Discuss or promote any illegal activity (including posting links to other websites that deal with illegal activities), or advocate, promote, or assist any unlawful act;
- Post or transmit any unsolicited advertising, promotional materials, or other forms of solicitation through the Website, including the solicitation of models for commercial ventures or for prostitution or escort services;
- Transmit "junk mail," "chain letters," or "spam;" or
- Engage in antisocial, disruptive, or destructive behavior, including "bombing," "flaming," "flooding," "trolling," and "griefing" as those terms are commonly understood and used on the Internet.
- You must not engage in any of the following prohibited activities while using the Website:
Monitoring and Enforcement
- The Company may do any of the following:
- Remove or refuse to post any submission or communication for any reason, including obscene or defamatory material or excessive length;
- Take any action against any submission or communication that the Company considers necessary or appropriate, including if the Company believes that the submission or communication breaches this agreement, infringes any intellectual property right of any person, threatens the personal safety of users of the Website or the public, or could create liability for the Company;
- Disclose your identity or other information about you to any person who claims that your submission or communication violates their rights, including their intellectual-property rights or their privacy rights;
- Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Website; or
- Terminate or suspend your access to all or part of the Website for any reason, including breach of this agreement.
- The Company will fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity of or other information about anyone posting any submission or communication on or through the Website or otherwise engaging in any alleged wrongful conduct. You hereby waive any claims you might have against the Company—including its affiliates, licensees, and service providers—resulting from any action taken by the Company during or because of the Company’s investigations and from any actions taken as a consequence of investigations by either the Company or law enforcement authorities.
- The Company cannot and does not review all material before it is posted on the Website and cannot ensure prompt removal of objectionable material after it has been posted. You remain solely responsible for the content of your submissions and communications. The Company will not be liable for any action or inaction regarding submissions, transmissions, communications, or content provided by any user or third party. The Company will not be liable to anyone for performance or nonperformance of the activities described in this section 5.4. But if you know of any submission or communication that violates this agreement, please email the Company at email@example.com. Please provide as much detail as possible, including (1) a copy of the objectionable submission or the location where the Company may find it, (2) the reason the Company should remove it, and (3) a statement certifying the accuracy of the information you provided to the Company.
- The Company may do any of the following:
- In General. The Website is a social media platform that lets you subscribe to a model’s profile to view the model’s otherwise restricted photos and videos as well as to interact with that model in exchange for a recurring fee. Prices for any subscription may change at any time, and the Company does not provide price protection or refunds in the event of a price reduction or promotional offering. You may also send the model a tip.
- Payment. You will pay for any subscription that you order. You must have a valid accepted form of payment on file to purchase a subscription. The Company uses third-party payment processors to process all payments. The Company’s third-party payment processor will charge your credit card or other form of payment for the price listed for the relevant subscription, along with any additional amounts relating to applicable taxes, bank fees, and currency fluctuations. The Company’s third-party payment processor stores your payment card information. The Company does not store any payment card information.
- Recurring Billing. If you purchase an automatically renewing subscription, you hereby authorize the Company’s payment processor to charge the payment method on file on the first day of each billing period for the relevant subscription, and if the payment method on file becomes invalid due to an expired credit card or other similar reason and the Company’s payment processor is unable to charge you on the next billing period, the Company may immediately revoke your access to any subscription you have purchased until you update your payment method. If you fail to update your payment method within a reasonable amount of time, the Company may cancel your subscription.
- Taxes. If the Company is required to collect or pay any taxes in connection with your purchase of a subscription, those taxes will be charged to you at the time of each purchase transaction. Additionally, if required by law, you are responsible for reporting and paying certain taxes in connection with your purchase and use of a subscription. These taxes may include duties, customs fees, or other taxes (other than income tax), along with any related penalties or interest, as applicable to your purchase or country of purchase.
- Billing Errors. The Company will correct any mistakes in a charge and add or credit them against your future payments. If you become aware of any errors in a charge, please notify the Company promptly at firstname.lastname@example.org. If an error occurs in the billing bank, gateway, processor, or intermediate processor and a transaction is lost, the Company has up to 30 days to work with the billing bank, gateway, processor, or intermediate processor to locate this transaction and solve this issue, including providing credit to your payment method or refunding the transaction. You waive any error unless you notify the Company of the error within three months after you receive the bill in which the error first appears. You hereby release the Company from any liability for any error that you do not report to the Company within three months after you receive the bill in which the error first appeared.
- Subscription Cancellations. If you purchase a subscription to a model’s profile, you may cancel that subscription anytime before the end of the current billing period, and the cancellation will take effect on the next billing period. To cancel a subscription, you may (a) turn off the "Auto-Renew" switch located under the relevant model profile, (b) email the Company at email@example.com, or (c) contact the third-party payment processor that you signed up through. You retain access to the model’s profile from the time you cancel until the start of the next billing period. You will not receive a refund or credit for any remaining days in your current billing period.
- Content Ownership. You retain all ownership rights to content uploaded to the Website.
- Content License. By submitting content to the Website, you hereby grant the Company a worldwide, nonexclusive, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the content in connection with the Website and the Company’s (and its successors’ and affiliates’) business, including for promoting and redistributing part or all of the Website (and derivative works of it) in any media formats and through any media channels.
Third-Party Content. Through the Website, you will have the ability to access or use content provided by third parties. The Company cannot guarantee that that third-party content will be free of material you may find objectionable or otherwise. The Company will not be liable to you for your access or use of any third-party content.
Links to other Websites. The Website may contain links to third-party websites or resources. You acknowledge that the Company is not responsible or liable for: (1) the availability or accuracy of those websites or resources; or (2) the content, products, or services on or available from those websites or resources. Links to third-party websites or resources do not imply any endorsement by the Company of those websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
No Endorsement. The Company operates the Website as a neutral host, and the Company does not regularly monitor, regulate, or police the Website’s use by any of its participants. The participation in the Website by a visitor, user, model, studio, or other third party (collectively, the "participants") does not constitute the Company’s endorsement that participant. The Company is not responsible for the acts, omissions, agreements, promises, content, products, or other services, comments, opinions, advice, statements, offers, or information of any participant. Participants are independent parties, and the Company does not, and will not, have any responsibility or liability for the acts, omissions, agreements, promises, comments, opinions, advice, statements, or offers of any participant.
Copyright Policy. The Company respects the intellectual property rights of others and expects the Website’s users to do the same. The Company will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to the Company. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide the Company’s copyright agent with the following information in accordance with the Digital Millennium Copyright Act (DMCA):
- a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- identification of the copyrighted work claimed to have been infringed;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material;
- your contact information, including your address, telephone number, and an email address;
- a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
It is the Company’s policy in appropriate circumstances to disable or terminate the user accounts of repeat infringers in accordance with the Company’s repeat infringer policy.
- Termination on Notice. Either party may terminate this agreement at any time by notifying the other party.
- Termination by the Company. The Company may terminate or suspend your access to or ability to use the Website immediately, without notice or liability, for any reason or no reason, including breach of this agreement.
- Effect of Termination. On termination of your access to or ability to use the Website, your right to use or access the Website will immediately end. 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 canceled. To cancel a subscription, you may (a) turn off the "Auto-Renew" switch located under the relevant model profile, (b) email the Company at firstname.lastname@example.org, or (c) contact the third-party payment processor that you signed up through.
- Survival. This agreement’s provisions that by their nature should survive termination will survive termination, including intellectual-property rights, warranty disclaimers, and limitations of liability.
Changes to the Website; Availability
- Although the Company may update the content on the Website on one or more occasions, the content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and the Company is not required to update that material. If you believe you have found errors or omissions on the Website, you can bring them to the Company’s attention by contacting it at email@example.com.
- While the Company will try to make sure that the Website is always available, it does not guarantee continuous, uninterrupted, or secure access to the Website. Many factors or circumstances outside of the Company’s control may interfere with or adversely affect its operation of the Website.
Compliance with Law. The Website is hosted in the United States. 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. If you access the Website in a jurisdiction that prohibits or restricts its use, the Company will not have any liability to you for your use of the Website.
Acknowledgments and Warranty Disclaimers
- You acknowledge that the Company cannot and does not state that files available for downloading from the Internet or the Website will be free from loss, corruption, attack, viruses or other destructive code, interference, hacking, or other security intrusions. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for antivirus protection and accuracy of data input and output, and for keeping 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 (DDoS) attack, viruses, or other technologically harmful material that might 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 the Website, or on any website linked to the Website.
- You acknowledge that the Website includes content provided by third parties, including materials provided by other users, models, studios, third-party licensors, syndicators, or aggregators ("third-party materials"), and that the Company does not prescreen or preemptively monitor third-party materials. All statements or opinions expressed in third-party materials, and all responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person providing third-party materials. Third-party materials do not reflect the opinion of the Company. The Company will not be liable to you or any other person for the content or accuracy of any third-party materials. You further acknowledge that you may be exposed to third-party materials that are inaccurate, offensive, indecent, obscene, or otherwise objectionable, and you hereby waive any legal or equitable rights or remedies you have or may have against the Company with respect to those third-party materials.
- 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.
- The Company is not making any warranty, whether express, implied, statutory, or otherwise, including the 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.
Limit on Liability; Release
- 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:
- Errors, mistakes, or inaccuracies of content;
- Personal injury or property damage resulting from your access to and use of the Website or its content;
- Content (including user submissions) or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
- 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, submissions, transmissions, or data;
- Interruption or cessation of transmission to or from the Website;
- 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;
- Incompatibility between the Website and your other services, hardware, or software;
- Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Website; or
- Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Website.
- You hereby release the Company, its directors, officers, employees, agents, subsidiaries, affiliates, licensors, content providers, and service providers from all liability arising out of user submissions or the conduct of other users or third parties, including disputes between you and one or more other users or third parties.
- 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:
Exclusion of Damages; Exclusive Remedy
- 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 the 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.
- 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 the 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.
- If you are dissatisfied with the Website or have any other complaint, your exclusive remedy is to stop using the Website and cancel your subscriptions. 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.
Scope of Disclaimers, Exclusions, and Limits. The disclaimers, exclusions, and limits stated in sections 16, 17, and 18 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.
- In General. You will pay the Company, its directors, officers, employees, agents, contractors, subsidiaries, affiliates, partners, licensors, content providers, and service providers (collectively, the " Indemnified Parties") for any loss of an Indemnified Party’s that is caused by any of the following (whether actual or alleged): (a) your use of the Website; (b) your breach of this agreement; (c) your violation of law; (d) your submission, posting, or transmission of user content to the Website; or (e) your violation of a third party’s rights. But you are not required to pay if the loss was caused by the Indemnified Party’s actual intentional misconduct.
- "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.
- 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.
- The Indemnified Party’s Duty to Notify You. 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.
- 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.
- No Exclusivity. The Indemnified Party’s rights under this section 20 do not affect other rights the Indemnified Parties might have.
- Litigation Election. Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive or other equitable relief, or (b) a suit to compel compliance with this dispute resolution procedure.
- Negotiation. Each party will allow the other a reasonable opportunity to comply before it claims that the other has not met the duties under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of or relating to the Website.
- Mediation. If the parties cannot settle a dispute arising out of or relating to the Website or this agreement through negotiation after 30 days, either party may, by notice to the other party and the International Institute for Conflict Prevention & Resolution (" CPR"), demand mediation under the Mediation Procedure of CPR. Mediation will take place in Austin, Texas, U.S.A. The language of the mediation will be English. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
- Claim Procedure. If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to the Website or this agreement by arbitration administered by CPR under its Rules for Administered Arbitration. A single arbitrator will preside over the arbitration. 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.
- Arbitration Location. Unless the parties agree otherwise in writing, the arbitration will take place in Austin, Texas, U.S.A.
- Arbitration Fees. Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration.
- Arbitration Award. 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 award rendered by the arbitrator must include costs of arbitration, reasonable legal fees in accordance with section 21.7, and reasonable costs for expert and other witnesses. The arbitrator’s award will bind the parties and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Confidentiality. 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.
- 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. If any breach occurs or is threatened, the injury party may promptly seek enforcement of this agreement by means of specific performance, injunction, restraining order, or any other equitable remedy, in each case without posting a bond or other security and without proof of actual money damages in connection with the claim.
Jurisdiction and Venue
- If a party brings any court proceeding authorized under this agreement, that party will bring that court proceeding only in the United States District Court for the Western District of Texas (Austin, Texas) or in any state court of competent jurisdiction in Travis County, Texas, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any court proceeding, except that judgement on an award rendered in arbitration may be entered in any court of competent jurisdiction.
- Each party hereby waives any claim that any court proceeding brought in accordance with section 21.6(a) has been brought in an inconvenient forum or that the venue of that court proceeding is improper.
- Recovery of Expenses. In any proceedings between the parties arising out of or relating to the subject matter of 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 21.7, "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.
- Jury Trial Waiver. Each party hereby waives its right to a trial by jury in any proceedings arising out of, or relating to the subject matter of, this agreement. Either party may enforce this waiver up to and including the first day of trial.
- 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.
- 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.
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. A printed version of this agreement will be admissible in any proceedings arising out of or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form. Any additional terms on the Website will govern the items to which they pertain.
Copy of this Agreement. You may, and the Company recommends that you, print this agreement on your printer or save it to your computer. If you have trouble printing a copy, please contact the Company at firstname.lastname@example.org it will email you a copy.
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 advance written consent. Any attempted assignment of rights or delegation of performance in breach of this section 22.3 is void.
Waivers. The parties may waive any 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.
Severability. The parties intend as follows:
- 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;
- 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;
- that if an unenforceable provision is modified or disregarded in accordance with this section 22.5, then the rest of the agreement will remain in effect as written; and
- that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
Notices. For a notice or other communication under this agreement to be valid, it must be in writing and delivered by email. A valid notice or other communication under this agreement will be effective when received by the party to which it is addressed. It will be deemed to have been received as follows: (a) when the party to which the email is addressed acknowledges having received that email; and (b) if the party to which it is addressed rejects or otherwise refuses to accept it, or if it cannot be delivered because of a change in email address for which no notice was given, then on that rejection, refusal, or inability to deliver. You may address notice to the Company to email@example.com unless a specific email address is stated for giving notice for that particular issue. The Company may address any notice to you to the last known email address the Company has for you.
Governing Law. Texas law, without giving effect to its conflicts of law principles, governs all matters arising out of or relating to this agreement, including the validity, interpretation, construction, performance, and enforcement of this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a "sale of goods."
Force Majeure. The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond The Company’s reasonable control delays or continues to delay The Company’s performance, including:
- Acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
- War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
- Fiber cuts;
- Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
- Failure of the telecommunications or information services infrastructure; and
- Hacking, SPAM, DDOS attacks, or any failure of a computer, server, network, or software.
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.
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.
Successors and Assigns. This agreement inures to the benefit of, and binds, the parties and their respective successors and assigns. This section 22.11 does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 22.3 addresses these matters.
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.
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 mouse, keystroke, or other computer device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
Consumer Rights Information — California Residents Only. This provision applies only to California residents. In compliance with section 1789 of the California Civil Code.
To access certain parts of the Website or certain features, you must a subscription. You may contact the Company at firstname.lastname@example.org to resolve any disputes or to receive further information about the Website.
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.
Feedback. The Company encourages you to give feedback about the Website. But the Company will not treat as confidential any suggestion or idea you give, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
English language. The Company has drafted this agreement in the English language. The Company assumes that you can read and understand the English language. The Company is not liable to you or any other person for any costs or expenses incurred to translate this agreement into another language. The English language version controls over any translated version.
No Reliance. You acknowledge that in electronically signing this agreement, you do not rely and have not relied on any statement by the Company or its agents, except those statements contained in this agreement.
Contact Information. If you have any questions or comments about this agreement or the Website, please email the Company at email@example.com.