By using or accessing the Site's content, You agree to be bound by these Terms and Conditions (the "Agreement"), as amended from time to time. Please read them carefully. If You do not agree with all of the terms in this Agreement, You cannot access or use the Site(s).
a. Ingenuity Ventures, Inc., ("Company") is the operator of the following website: www.swingerpixels.com (the "Site(s)"). First-person pronouns like Us, We, Our, Ours, etc. in this Agreement also refer to the Company.
3. Conditions for Usage of the Site
a. In order to use the Site or any services provided by the Company, You must have attained the age of majority (i.e. at least 18 or 21 years of age) in Your jurisdiction. You represent and warrant that You have attained the age of majority in Your jurisdiction.
b. No one is authorized to access this Site unless they have signed this Agreement. Such signature does not need to be a physical signature, since electronic execution of this Agreement is permitted by the Electronic Signatures in Global and National Commerce Act (E-Sign Act), and similar statutes.
c. We may revise this Agreement. We reserve the right to do so, and You agree that We have this right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. Any updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. If any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
d. If We change anything in this Agreement, We will change the "last modified date" at the top of this Agreement so that it is immediately obvious that We have updated it. If You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for Your failure to do so 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.
e. 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 Site and Our Services. You agree that such Consideration is both adequate, and that it is received upon Your viewing or using any portion of any of the Site.
f. Consent to Electronic Communications. You agree that the Site may include certain communications such as service announcements or administrative messages, and that these communications are considered part of Your use of the Site or Services and You will not be able to opt-out of receiving them. You also agree that all agreements, notices, disclosures and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing.
g. Registered Sex Offender. You may not access the Site if You are, or are required to be, a registered sex offender in any jurisdiction. Your continued access indicates Your representation and warranty that You have not been convicted of a felony or any criminal offense characterized as a sexual offense, and, that You are not required to register as a sex offender with any government entity. While We restrict Our Site and Services to those who are not registered sex offenders, You understand and acknowledge that We do not screen Users in any way, including screening for sex offenders.
h. You agree to use the Site only for Your own personal, lawful use and for their intended purposes. You may not authorize or permit others to use Your account.
i. You may not: 1) attempt to obtain the personal contact information of another user without their consent; 2) use vulgar, harassing, obscene, privacy invading, or defamatory language; 3) do anything to disrupt the operation of the Site, Services or network; 4) attempt to gain unauthorized access of the network to transmit "junk mail" or other electronic commercial messages; 5) post, upload or transmit false, misleading or illegal information or content to the Site, or take any action that violates the rights of third parties; 6) make false statements or attempt to use financial or other information that You are not authorized to use; 7) infringe on the intellectual property of this Site or other third parties, or 8) any other unacceptable conduct.
j. Users shall not engage in any activity or transmit content that depicts or references anything that may:
i. be defamatory, obscene, child pornographic, harassing, illegal, or otherwise objectionable content (in Our discretion). Such content may not appear on any profile or chat board and such content is prohibited from Our internal messaging services as well;
ii. promote or facilitate illegal activity, or violate the rights of others;
iii. incorporate Prohibited Content. Prohibited Content includes, but is not limited to: images of any individuals under the age of eighteen (18), criminal activity, incest content, warez content, scatological content, depictions of; death, defecation, feces, urination, scatology, genital mutilation, underage teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, bestiality, or any material containing or promoting threats of physical harm to persons or property, viruses, pirated software, wire fraud, money laundering, human trafficking, drug trafficking, violations of international export control laws, and/or unauthorized displays of intellectual property including trademarks, copyrighted images, and celebrity images.
k. You acknowledge and agree that affiliates, Members, and promoters of the Site may send You electronic messages and other promotional information from time to time. You may choose to opt out of receiving such messages when you create Your account. You may also opt out at any time by modifying Your settings on Your preferences page.
l. Members may not send promotional messages to other Members who have opted out of receiving such messages. A warning will appear on the Member’s profile, stating that the Member has opted out. Failure to honor a Member’s opt out request will be grounds for suspension or termination of the violating Member’s account, at the Site’s sole discretion.
m. Your postings shall be accurate and may be posted and/or edited, in Our sole discretion, and should not contain racist, discriminatory, vulgar or defamatory language.
n. You may not use the Site for any purpose that is unlawful or prohibited by the applicable terms, conditions and notices of this Agreement.
o. You may not use the Site in any manner that could damage, disable, overburden or impair the Site or interfere with any other party's use and enjoyment of the Site. You may not attempt to obtain any materials or information through any means not intentionally made available or provided for through the Site.
p. You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of the content on Our Site. You hereby agree not to use any automatic device or manual process to monitor, "scrape," or reproduce the Site or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it.
q. You acknowledge that the Site operates as an interactive computer service under federal law, and permits individuals to communicate with each other in various ways. As with any human interaction, some individuals may seek to abuse the Site, to annoy, harass, or otherwise harm other users. We do not tolerate such abuse, and any user engaging in such conduct risks termination and potential civil or criminal liability. This notification shall serve as a warning to Our users of the potential for misuse of Our Site. We urge You to use common sense when interacting with individuals using the Site, and to report any instances of misconduct to customer support.
r. Any violation of these online conduct guidelines or Terms and Conditions will subject Your account to immediate termination without notice.
s. Notwithstanding the foregoing, the Company does not assume any obligation to monitor or review postings or content submitted by Our users, and may choose not to do so.
4. Waiver of Any Privacy Rights
a. You acknowledge that Your profile may be utilized and displayed on other network sites operated by the Company, or otherwise affiliated with the Company. You hereby consent to make Your profile available on other network sites.
b. You understand and accept that when You attempt to contact other users, these users may find amusement in your profile or communications. You understand and accept that no communications between You and other users is private, even if the Member profile to which You respond is created by Us. You hereby release Us and all other members of the Site from any liability for invasion of privacy, defamation, false light, and related torts, in the event that Your communications or profile are made public - even if they are made public for the sole purpose of amusing others at Your expense.
5. Restrictions on Use of Our Site:
a. You agree that You will only use the Site for purposes expressly permitted by this Agreement and not for any other use, including, without limitation:
i. Duplicate any part of Our Sites or the Materials contained therein (except as expressly provided elsewhere in this Agreement);
ii. Create any derivative works based on Our Site or any of the Materials contained therein;
iii. Use Our Site or any of the Materials contained therein for any public display, public performance, sale or rental;
iv. Re-distribute Our Site or any of the Materials contained therein;
v. Remove any copyright or other proprietary notices from Our Site or any of the Materials contained therein;
vi. Frame or utilize any framing techniques in connection with Our Site or any of the Materials contained therein;
vii. Use any meta-tags or any other "hidden text" using our Site's name or marks, and You hereby stipulate that any use of the Site's name or marks, or any other marks owned by the Company is an infringement upon the Company's trademark rights, and You stipulate to liquidated damages of five thousand dollars ($5,000) per such infringement, plus You agree to pay any and all fees incurred in the recovery of this amount, including attorneys' fees and all associated costs.
viii. Avoid agreement to the Site's Terms & Conditions; You may only link to the main entry page;
ix. Circumvent any encryption or other security tools used anywhere on the Site (including the theft of user names and passwords or using another person's user name and password in order to gain access to a restricted area of the Site);
x. Use any data mining, bots, or similar data gathering and extraction tools on the Site;
xi. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law;
xii. Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of Your rights to access and use the Materials as granted specifically by this Agreement; or
xiii. Bookmark any page of the Site beyond the registration log-in screen.
6. Grant of License to User
a. Subject to this Agreement, the Company grants You a limited, nonexclusive, nontransferable personal license to access and use the Site.
b. Users of this Site are granted a single copy license to view Materials.
c. All Materials on the Site shall be for Your personal, non-commercial use only and all other uses are strictly prohibited. Any unauthorized use of the Site or any of the Materials contained therein terminates this limited license effective immediately.
d. Company 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.
7. Grant of License to Company
a. You hereby irrevocably grant to Company a non-exclusive, perpetual, worldwide, irrevocable, and transferable right and license to:
i. Reproduce, transmit, communicate, display, or distribute your submitted photographs, on or as part of Our network of sites, on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
ii. Reproduce Your pictures in digital form of display on the Internet (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hypertext links);
iii. Adapt, modify, or alter Your texts, videos, or photographs, or otherwise create derivative works based thereupon; and for all other reasonable promotional or commercial uses either as part of the operation of Our Site, or as a promotion or operation of any derivative or related businesses.
8. Membership Types and Fees
a. You may review the Membership terms, programs, and payment options at any time by visiting TBD.
b. Automatic Renewals. IF YOU PAY FOR A MEMBERSHIP BY CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD INVOLVING AN AUTOMATICALLY RENEWING MEMBERSHIP) AND YOU DO NOT CANCEL YOUR MEMBERSHIP PRIOR TO THE END OF THE TERM, YOUR MEMBERSHIP WILL BE AUTOMATICALLY EXTENDED AT THE END OF EACH TERM FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE ORIGINAL MEMBERSHIP TERM.
i. YOU ACKNOWLEDGE AND AGREE THAT YOUR PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR SUCH MEMBERSHIP FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH AUTO RENEWAL. YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES TO YOUR CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED ON THIS AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU.
ii. AS AN EXAMPLE ONLY, UNLESS YOU CANCEL, A ONE MONTH MEMBERSHIP WILL AUTOMATICALLY BE RENEWED ON A MONTHLY BASIS. THE RENEWAL WILL BE AT THE SAME MEMBERSHIP FEE AS WHEN YOU FIRST SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST 10 DAYS PRIOR TO THE END OF YOUR CURRENT TERM THAT THE MEMBERSHIP FEE WILL INCREASE.
c. Membership obligations and restrictions.
i. Membership fees are non-refundable.
ii. All of the information You provide during Your signup process, and in any other interaction with Us, shall be correct, current, truthful, and complete. If You provide any false, misleading, incomplete, or otherwise incorrect information to Us, Your Membership and Your Membership discounts will be immediately null and void - and You will be responsible for a-la-carte billing for all of Your access to Our services.
iii. You may never sell, transfer or sell Your membership to a third party. You are not authorized to share any of Our Materials with any person who does not have their own membership.
iv. 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.
v. You are responsible for any credit card charge backs, dishonored checks, and any related fees that We incur with respect to Your account. 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.
vi. Username & Password - As part of the registration process, You will be issued or choose a unique User name and password which You must provide in order to gain access to the non-public portion of the Site. You certify that when asked to choose a username You will not choose a name which may falsely represent You as somebody else or a name which may otherwise be in violation of the rights of a third-party. We reserve the right to disallow the use of usernames that We, at Our sole discretion, deem inappropriate. We reserve the right to cancel at any time the Membership of any Member who violates these Terms and Conditions or in any other way We, in Our sole discretion, deem inappropriate. Your membership, the ID and password are all nontransferable and non-assignable. You represent and warrant that You will not disclose to any other person Your unique User name and password. You are solely responsible for maintaining the confidentiality of Your User name and password and are fully responsible for all activities that occur under Your User name and password. You agree to (a) immediately notify Us of any unauthorized use of Your User name and password or any other breach of security, and (b) ensure that You exit from Your account at the end of each session.
9. For Amusement Purposes Only
a. You understand and accept that Our Site and Services is an entertainment and social networking service. All content depicts consenting individuals over the age of eighteen (18) who have provided rights to the Site to publish the content. All images are provided for the amusement and entertainment of Our Members and Our Users.
b. You hereby discharge, acquit, and otherwise release Company, its parent company, its agents, employees, officers, directors, shareholders, attorneys, and affiliates, from any and all allegations, counts, charges, debts, causes of action, and claims relating in any way to the use of, or activities relating to the use of the Site and Services including, but not limited to claims relating to the following:
i. Sexual Harassment, Negligence, Gross Negligence, Reckless Conduct, Alienation of Affections (to the extent recognized in any jurisdiction), Intentional Infliction of Emotional Distress, Intentional Interference with Contract or Advantageous Business Relationship, Defamation, Privacy, Publicity, Intellectual Property, Statutory Rape, Misrepresentation, any financial loss not due to the fault of the Site, missed meetings, unmet expectations, false identities, fraudulent acts by others, invasion of privacy, violation of publicity rights, data breach, release of personal information, failed transactions, purchases or functionality of the Site, unavailability of the Site, its functions and/or services and any other technical failure that may result in inaccessibility to the Site, or any claim based on vicarious liability for torts committed by individuals met on or through the Site and Services, including but not limited to fraud, theft or misuse of personal information, assault, battery, stalking, rape, theft, cheating, perjury, manslaughter, or murder.
ii. The above list is intended to be illustrative only, and not exhaustive of the types or categories of claims released by You. This release is intended by the parties to be interpreted broadly in favor of Us, and thus any ambiguity shall be interpreted in a manner providing release of the broadest claims. This release is intended to be a full release of claims, and the parties acknowledge the legally binding nature of this provision, and the nature of the rights given up in connection therewith.
c. Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material. You agree not to allow minors to view any such content, and You agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors' access to harmful or inappropriate material. Pursuant to 47 U.S.C. § 230(d), You are hereby informed that You can research such services by typing "internet filters" or "parental controls" or similar term into an Internet search engine. We make no representation or warranty regarding any of the products or services located on such sites, and We recommend that You conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing Our Site or the content received via Our Services if Your computer or mobile device can be accessed by a minor. 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 as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication of Your content (including third-party content). We do not create such content, and We are not responsible for the publication of remarks or communications 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 the provider of an interactive computer service.
10. Third Party Links
a. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by the Company of such websites or the content, products, advertising, or other materials presented on such Site, but are for Users' convenience.
b. Affiliates, Members, and promoters of the Site may send you electronic messages and other promotional information from time to time. If You decide to access or attend any third party events or websites referenced in those communications, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
d. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
a. Past Due Payments - If You fail to pay Your account in full within 30 days of the invoice date, You agree to pay interest on the past due amount at a monthly rate of 1.5%, or the highest amount allowed by applicable law, whichever is higher, compounded daily, plus any additional collection costs, credits, charge backs and attorneys' fees.
b. Billing Errors. If You believe that You have been erroneously billed, please notify Us immediately of such error. If We do not hear from You within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by You for all purposes, including resolution of inquiries made by Your credit card issuer. You release Us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to Us within thirty (30) days of its publication.
c. Reservation of Right to Charge Additional Fees. We reserve the right to charge additional fees for access to the Site, or any of its features or services, and to change Our fee structure at Our discretion.
d. Foreign Transaction and Similar Fees. We may use credit card processors or banks outside the United States to process Your transactions. In some instances, Your bank or credit card issuer may charge You a foreign transaction or similar fee or charge. In addition, if You are outside of the United States or making a purchase in a currency other than U.S. Dollars, the payment processor may add a surcharge for the currency conversion. Before purchasing any services, please check with Your bank or credit card issuer for more information about its policies regarding foreign transaction and similar fees and charges.
e. Virtual Currency. We may, at various times, permit members to purchase services on Our Site using one or more virtual currencies or alt coins, such as Bitcoin. Acceptance of such payment method is in Our sole discretion, and may be of limited duration. Any payment in virtual currency is irreversible. Additional administrative fees may accompany virtual currency transactions.
12. SPECIAL CONSIDERATIONS REGARDING MINORS AND OTHER AGE RELATED ISSUES
a. WE HAVE A ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY.
i. We take great measures to ensure that no underage individuals appear in any of Our materials.
ii. All Users shall report any images, real or simulated, that appear to depict minors on Our Site. If You see any images or other depictions that are questionable, You agree to report these images by emailing Us at firstname.lastname@example.org. Please include with Your report any appropriate evidence, including the date and time of identification.
iii. Apparent instances of child pornography or child exploitation are reported to the National Center for Missing and Exploited Children, under federal law. We enthusiastically cooperate with any law-enforcement agency investigating child pornography.
b. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User's age. Users must utilize their own efforts to confirm age before relying on any User's age representation to the Site.
13. Disclosures Regarding Images and Content on Sites
a. Sexually Explicit Nature – Our Site(s) contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other World Wide Website owned, operated, licensed, or controlled by the Company (collectively, "Materials").
b. You acknowledge and understand that some or all of the Materials may be erotic in nature – and that they may contain graphic visual depictions of sexual activity and nudity, graphic audio of the same kind of content, and descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by the Company and that You are not offended by such Materials, and that You access the Site freely, voluntarily, and willingly, and for Your own personal enjoyment.
14. Stipulated Lquidated Damages
a. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties' good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
b. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of one hundred dollars ($100) per occurrence. You specifically agree to pay this one hundred dollars ($100) in liquidated damages. You further acknowledge that this amount is not intended as a penalty, but is deemed to be a reasonable estimate of actual damages, which are stipulated to be difficult to ascertain with certainty.
15. Limitation Of Liability
a. 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 Site, Services, 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.
b. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of the Site or Services for a period of more than one (1) month from the accrual of the applicable cause or causes of action or ten dollars ($10.00), whichever is greater. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
16. Warranty Disclaimer
a. The Site and all materials contained therein are provided "as is" without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.
b. COMPANY DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OR SCREEN THE PERSONS ACCESSING THE SERVICES. COMPANY IS NOT RESPONSIBLE AND DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE CONDUCT OF ANY USER, REGARDLESS OF WHETHER THAT CONDUCT OCCURS ONLINE OR OFFLINE.
c. Company makes no warranty regarding any goods or services purchased or obtained through the Site or any transaction entered into through the Site and is not responsible for any use of confidential or private information by sellers or third parties.
d. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site or any of the materials contained therein is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.
e. WITHOUT LIMITING THE FOREGOING, COMPANY SPECIFICALLY DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM, ARISING OUT OF OR ANY WAY RELATED TO (A) THE ACTIONS YOURSELF OR OF ANY THIRD PARTY, (B) THE UNAVAILABILITY OF THE SERVICES OR ANY LOSS OF DATA, (C) YOUR USE OF THE SERVICES OR THE CONTENT, (D) ANY USER SUBMISSIONS, USER FILES, CONTENT, OR POSTS, AND (D) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES OR THE CONTENT, AND (E) YOUR USE OF ANY THIRD-PARTY SERVICES SUCH AS WEBSITES, MOBILE WEBSITES, LINKS, ETC. DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS ON THE SERVICES.
17. Disclaimer And Indemnification
a. The provision of any services which are in violation of any laws is strictly prohibited. If We determine that You or any User has provided or intends to provide any services or material in violation of any law, Your ability to use the Site and Services will be terminated immediately without any reimbursement of any payment You may have made to Us. We reserve the right, in Our sole discretion, to cooperate with law enforcement upon legal request and/or advisement of an attorney. We do hereby disclaim any liability for damages that may arise from any User providing any material or 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.
b. You also agree to defend and indemnify Us should any third party be harmed by Your illegal actions or should We be obligated to defend any claims including, without limitation, any criminal action brought by any party.
c. Our Site and Services contains material that may be offensive to third parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material and You agree to immediately cease review of the Site and use of the Services should You find them offensive.
d. You agree to defend, indemnify, and hold harmless Company, 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 Site, Services, or any of the Materials contained therein, or Your breach of any 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, but are not obligated to do so.
18. Trademark Information
a. The brand name of the Site, SWINGERPIXELS, is considered a service mark owned by Us. We aggressively defend Our intellectual property rights.
b. Other manufacturers' product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
c. All of the marks, logos, domains, and trademarks that You find on the Site and Services may not be used publicly except with express written permission from Us, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Us.
19. Copyright Information
a. The Materials accessible from the Site, Services, and any other Site owned, operated, licensed, or controlled by Us are Our proprietary information and valuable intellectual property and We retain all right, title, and interest in the Materials.
b. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without Our prior written consent, except that You may print out a copy of the Materials solely for Your personal use. In doing so, You may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Materials.
c. Modification or use of the Materials except as expressly provided in this Agreement violates Our intellectual property rights.
d. Neither title nor intellectual property rights are transferred to You by access to the Site and Services.
e. All Materials included on the Site, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the property of Company or its content suppliers and is protected by United States and international copyright laws. The compilation of all Materials on the Site is the exclusive property of Company or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations.
20. Export Control
a. You understand and acknowledge that the software elements of the Materials on the Site may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States' or international law is prohibited.
b. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
c. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that You will abide by such laws and regulations.
d. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
21. DMCA Policies And Procedures
a. We respect the intellectual property rights of all parties, and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act ("DMCA"). Copies of Our Repeat Infringer Policy are available on request to Our Members.
b. Our DMCA Notice and Takedown Policy is available here: https://swingerpixels.com/dmca_notice
22. No Agency Relationship
Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
a. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on the Site, or personal delivery by commercial carrier such as Federal Express or DHL.
b. When Notice is Effective. Notices shall be deemed effective upon delivery, except that notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing and notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on the Site, or personal delivery by commercial carrier such as Federal Express or DHL. Notices by customers to Us shall be given by electronic messages unless otherwise specified in the Agreement.
c. Change of Address. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
d. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
e. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
24. Communications Not Private
We do not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Us shall be deemed to be readily accessible to the general public. Visitors should not use this Site or Services to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages and other content entered into this Site or Services can and may be read by the agents and operators of the Site or Services, regardless of whether they are the intended recipients of such messages.
25. Force Majeure
Company shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; criminal acts of employees or contractors, hacking, data breach, SPAM, or any failure of a computer, server or software.
a. Governing Law. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation permitted under this Agreement must be, without exception, initiated in Orange County, Florida.
b. All Parties to this Agreement agree that all litigation permitted under this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.
c. The Parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.
d. The Parties agree to exclusive venue in, and only in, Orange County, Florida.
e. 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.
f. 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 litigation permitted under this Agreement.
g. All Parties stipulate that the state and federal courts located in Orange County, Florida shall have personal jurisdiction over them for the purpose of any litigation permitted under this Agreement that is not otherwise subject to the arbitration provisions.
h. 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.
i. 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.
j. Right to Injunctive Relief. Both Parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other Party's breach, and that in any litigation permitted under this Agreement, an aggrieved Party shall therefore be entitled to seek injunctive relief, in addition to seeking all other remedies available at law or in equity.
27. Arbitration Provisions
a. If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall 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 must 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 by Us for intellectual property violations, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be confidential. 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 be willing to execute an oath of neutrality.
b. 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.
c. 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.
d. 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.
28. California Residents
a. Complaints – The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/about_dca/contactus.shtml.
b. Release – You understand and agree that by assenting to this Agreement, You waive any applicability of California Civil Code § 1542 as it may be applied to Your release of legal claims arising from Your use of the Site and/or Services.
29. No Waiver. No waiver or action made by the Company shall be deemed a waiver of any subsequent default of the same provision of this Agreement.
30. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
31. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to Your access and use of the Site and the Materials contained therein, and Your Membership with the Site, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
32. Other Jurisdictions. We make no representation that the Site, Services or any of the Materials contained therein are appropriate or available for use in other locations outside the Site's principal place of business, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site and Services from such locations do so on their own initiative and are solely responsible for determining compliance with all applicable local laws.
33. 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.
34. 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.
35. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this User Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this User Agreement will continue in full force and effect.
36. Any and all questions regarding these Terms and Conditions should be emailed to email@example.com.