Terms & Conditions
Effective Date: January 23, 2022
Last modified: January 23, 2022
1. General Provisions
This page states the terms and conditions of service (“Terms and Conditions” or “Agreement”) under which You may use www.myspalist.com, including any such mobile version of the same (the “Website”). Please read this Agreement carefully. If You do not accept the Terms and Conditions stated here, please do not use this Website or its Services. By using this Website, You are indicating Your acceptance to be bound by the terms of this Agreement.
BODYWISE LLC is the operator of the Website, and shall be referred to as the “Company” or by first-person pronouns, for example, Us, We, Our, Ours, etc. The terms “You,” “User,” or second-person pronouns such as “Yours” when used herein refer to all individuals accessing this Website for any reason. Additionally, when the terms “the Website,” “the Site” or “Site” are used, these terms refer to www.myspalist.com, and any such mobile version(s) of the same.
The term “Account Holder” refers to an individual who has registered for an account with the Website and has accepted these Terms and Conditions.
The term “Advertiser” refers to an Account Holder who advertises massage therapy services through the Website. The Advertising Account and Services terms can be found at the end of this document, as Annex I.
All Advertisers and all Account Holders are Users, but not all Users are Advertisers or Account Holders. You become a User by accessing this Website or its Services in any way.
2. Electronic Signatures / Assent Required
No one is authorized to register for an account, or register for an account and advertise massage therapy services, unless he or she has accepted this Agreement. You indicate acceptance of the Agreement by checking a box, clicking a link or button, or taking any action indicating Your assent to be bound by the Agreement. You should understand that these actions have the same legal effect as placing Your physical signature on any other legal contract.
You acknowledge that You are aware of the laws, regulations, policies and community standards in your jurisdiction, and You will comply in with all applicable laws, regulations, policies or standards in connection with Your use of the Site or Services. You specifically agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or nation.
These Terms and Conditions document is a legal contract between You and the Company, governing Your activities as an Advertiser on this Site. You should treat it as any other legal contract by reading its provisions carefully, as they will impact Your legal rights. By becoming an Advertiser for this Site, You agree to all terms and conditions within this Agreement. If You do not agree with all of the provisions of this Agreement, You must cease all access to, and use of, the Site and any other Services provided by the Company.
Consideration – You agree that Your acceptance of the provisions of this Agreement is supported by consideration in the form of allowing You to use Our Site and Services, which includes allowing You to become an Advertiser on the Site, and the associated promotional benefits. You acknowledge the existence and sufficiency of such consideration upon your acceptance of this Agreement.
3. Additional documentation
Although this Agreement represents the primary terms and conditions of service for Our Website, additional guidelines and rules are hereby incorporated by reference:
- Cookies Policy
These documents can be found on Our Website. There is also an additional documents, the Advertising Account and Services terms, that can be found at the end of this document as Annex I.
4. Revisions to this Agreement
We reserve the right to make changes to Our Website, services, policies or this Agreement at any time. You agree that We have this right. You agree that the version of the Agreement you most recently accepted will be applicable to you. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining conditions.
5. Website and Services
You warrant that you are at least 18 years of age and possess the legal authority to create a binding legal obligation. Persons under 18 may use the Website and Services only with the involvement and consent of a parent or guardian. We are not responsable for the improper use of the Website by any User, regardless of age.
The Website acts as a passive conduit, providing an online advertising platform and database for its Users (“Services”). The Website and its Services are intended for the online distribution and publication of Advertiser-generated promotional material advertising massage therapy services. Access to this information is available free of charge. The Company does not verify this information and does not guarantee the accuracy, completeness, or timeliness of the information or claims contained therein. The Company uses reasonable efforts to keep the information contained on the Website current, but it assumes no obligation to do so, and acknowledges no responsibility or liability for any misrepresentations, errors, or omissions that might appear on the Website.
Some states or municipalities may impose licensing requirements on massage therapists or otherwise regulate massage services. The Company does not investigate, review, validate, confirm or endorse the licensure, qualifications or abilities of any Advertiser offering services through the Website, nor does it guarantee or endorse the quality or efficacy of any services they offer. Advertisers are solely responsible for the content they provide and post on the Website. By using the Website or Services, You understand that You are responsible for confirming the qualifications of any Advertiser and for determining the appropriateness of any service or suitability of any provider for your needs.
The Site provides certain tools for Advertisers, including an online portal to create and manage advertisements; start, change, or cancel Advertising Subscriptions; and/or take other actions with regard to Advertiser Accounts. We also seek to provide assistance to address billing issues or concerns. You agree that We are entitled to change or eliminate any such services or features at any time. You further agree that, in Our sole discretion, We may choose to provide services to Website users or other customer support, but We are not obligated to do so under this Agreement or otherwise. You expressly agree that We are not required to provide any specific support of any kind for administration of Advertiser Accounts or Services.
6. Website Material
The Website contains certain images and content, such as text, HTML code, graphics, images, logos, button icons, software and other material owned, operated, licensed, or otherwise controlled by the Company (collectively, “Website Material”). Such Website Material is protected under United States copyright, trademark and other laws. All Website Material is the property of the Company or its content suppliers. The compilation of all Website Material is the exclusive property of the Company and protected by U.S. and international copyright laws. The Company authorizes You to view and access the Website Material solely for Your personal, noncommercial use. Unauthorized use of the Website Material may violate copyright, trademark, and other laws. You may not sell or modify the Website Material or reproduce, display, publicly perform, distribute, or otherwise use the Website Material in any way for any purpose.
7. User Account & Information
If You want to become an Account Holder, you have to register with the Website by subscribing to a payment plan and providing certain information including, without limitation, a valid email address and password (Your “User Information”). You agree that all User Information provided by You will be true and current, and You are responsible for maintaining the confidentiality of the same. You may not become an Account Holder if accessing the Website or its Services would violate the laws of Your jurisdiction. You shall be responsible for all uses and/or activities conducted through Your User Account, whether or not authorized by You. You agree to immediately notify the Company of any unauthorized access or use of Your User Account. We disclaim any and all liability resulting from fraudulent access and/or use of the Website via Your User Account. You are permitted to create only one User Account with the Website, and transfer or sale of the same is prohibited.
8. Termination of User Account
Your User Account may be terminated by Us at any time, with or without cause. The Company reserves the right, in its sole discretion, to pursue any and all legal remedies, including but not limited to deletion of Your Content from the Website and immediate termination of Your User Account and/or Your ability to access the Website or any Service upon any breach by You of these Terms and Conditions, abuse of the Website, or if the Company is unable to verify or authenticate Your User Information or any other information You submit to the Website.
The Company will in no way be liable to You for termination of Your User Account or Your access to the Website. If Your access is terminated by Us, You will not attempt to regain access to the Website or Services without prior written consent from Us.
Effect of termination: Please note that termination or cancellation of Your account will not automatically result in permanent deletion of all data associated with Your User Account or Your Content. In our sole discretion, we may retain information pursuant to our internal data retention policies or for archival, business, legal or other reasons.
9. User Agreement to Receive Notifications & Other Communications
The Company reserves the right to send electronic mail or other communications to Users. You understand and agree that even unsolicited commercial email sent from the Company or its affiliates is not SPAM as defined under law. The purpose of this communication may include but is not limited to information designed to:
- inform You of any change to upgrade the status of Your User Account;
- provide information to You regarding products or services offered by the Company’s affiliates or partners;
- provide newsletters, updates, featured content or other information You have chosen to receive; and/or
- inform You about any of the Company’s related products, services or updates.
10. Acceptable Use Policy
Security Rules - Users are prohibited from violating or attempting to violate the security guidelines of the Website, including, without limitation:
- accessing data not intended for such User, or logging into a server or account which the User is not authorized to access;
- attempting to probe, scan or test the vulnerability of a system or network, or to breach security or authentication measures;
- attempting to interfere with the functionality of the Website and/or Service provided to any User, host, or network, including, without limitation, via means of submitting a virus, overloading, “flooding”, “spamming”, “mailbombing” or “crashing”; or
- forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting. Violations of system or network security may result in civil or criminal liability. The Company will investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations.
Specific Prohibited Uses - The Website and Services may be used only for lawful purposes expressly permitted by this Agreement. You understand and agree that You may not use the Website or Services for any other purposes. Accordingly, the Company specifically prohibits the following actions:
- Using the Website or Services in a manner that is in violation of any applicable law or regulation.
- Using the Website or Services for any purpose other than as a massage therapist or spa offering services or as a massage therapy patron seeking a massage therapist, and this prohibition includes but is not limited to selling or promoting any products or other services.
- Sending unsolicited mail or email, making unsolicited phone calls or sending unsolicited faxes regarding promotions and/or advertising of products or services to another User.
- Harassing, defaming, or injuring another User or Advertiser on this Website.
- Posting any private or personal information about any person, without that person’s consent.
- Deleting, revising, or creating any derivative works based on Website Material or User Content.
- Using any device, software or routine to interfere or attempt to interfere with the proper working of the Website or any activity being conducted on this Website.
- Collecting or copying and republishing or disseminating any User Content, whether by any automated or manual means, without the express consent of all such Users;
- Taking any action which imposes an unreasonable or disproportionately large load on any of the Website’s infrastructure.
- Disclosing or sharing User Information or User Account data, including Your own, with any third parties.
- Assisting, or attempting to assist in unauthorized access, or Your use of the Website or Services for any unauthorized purpose.
- Aggregating, copying or duplicating in any manner any of the Website Material or information available from the Website.
- Framing of or linking to any of the Website Material or information available from the Website.
11. User Content
As a User, You are responsible for any text, images, communications, and any other content or media uploaded, submitted, or otherwise transmitted via the Website or its Services (“User Content”). You are responsible for the consequences of Your User Content, and You understand and agree that Your User Content shall adhere to the provisions set forth in this Agreement. By accessing the Website and/or its Services, You represent and warrant that Your User Content, in whole or in part, does not contain material that:
- infringes on the intellectual property rights of others or on the privacy or publicity rights of others;
- may qualify as obscene, defamatory, threatening, harassing, abusive, hateful, or embarrassing to another User, the Website, or the Company;
- violates this Agreement, the Website’s community guidelines, publication standards, or any other policy governing the use of the Website and Services;
- is considered sexually explicit;
- impersonates another person;
- is false or inaccurate information, or information likely to deceive other Users; or
- contains viruses, Trojan horses, worms, time bombs, cancelbots or technology intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data or information.
The Company does not represent or guarantee the truthfulness, accuracy, or reliability of User Content, nor does it endorse any opinions expressed in such User Content. You acknowledge that any reliance on User Content posted by other Users will be at Your own risk.
The Company is permitted to review or monitor User Content prior to publication (or thereafter) but undertakes no obligation to do so.
You understand and agree that the Company reserves the right in its sole discretion (but is not obligated) to reject or remove any User Content found to be in violation of the provisions of this section, or as restricted by this Agreement.
You understand and agree that the Company reserves the right in its sole discretion (but is not obligated) to expel Users and prevent such Users from accessing the Website or Services for violating these Terms and Conditions or for any other reason.
You understand and agree that the Company reserves the right, but is under no obligation, to take any action with respect to User Content that it deems necessary or appropriate, in its sole discretion, if it believes such User Content may create liability, legal or otherwise, for the Company.
12. Liquidated Damages
You further agree that if You violate provisions of this Agreement for Acceptable Use or User Content, You will be jointly and severally liable to the Company for any and all losses or harm, including liquidated damages as follows, for:
- Publishing, disseminating or misusing personal or identifying information of any User or other third party in connection with Your use of the Website, without that party’s express written consent – $500 per violation;
- Sending an unauthorized/unsolicited email to an email address obtained from the Website – $25 per violation;
- Sending an unauthorized/unsolicited text or facsimile message, or making an unauthorized/unsolicited call to another User – $500 per text/call/communication;
- Aggregating, displaying, copying, duplicating, reproducing, distributing, or exploiting content from the Website without Our express written consent – $1,000 for each day you engage in such violations;
You agree that these amounts are a reasonable estimate of the Company’s damages (as actual damages are often difficult to calculate); not a penalty; and do not otherwise limit Our rights or ability to recover under any legal theory or claim, including for statutory damages and other equitable relief (e.g., for spam, we can elect between the above liquidated damages or statutory damages under the anti-spam statute).
13. License to Use Your User Information & ContentGeneral Provisions
You grant the Company and its affiliates the perpetual, royalty-free, irrevocable, non-exclusive right (including any moral rights) and fully transferable license to use, reproduce, modify, adapt, create derivative works of, publish, distribute, communicate, and/or display (in whole or in part) worldwide, in any medium now known or later developed, any information or content provided, or otherwise transmitted by You via the Website or its Services to other Users or third parties.
By submitting, or otherwise providing Your User Content, You represent and warrant the following:
- You own or otherwise control all intellectual property, publicity and other rights to the User Content necessary for the validity of the license grant above.
- The holder of any rights, including moral rights in such User Content, has completely and effectively waived all such rights.
- The license grant pertaining to Your User Content also permits Our Users to access, display, view, store, and reproduce such User Content for personal, non-commercial use.
14. Copyright Infringement
The Company respects the intellectual property of others, and We ask Our Users to do the same. The unauthorized reproduction, copying, distribution, modification, public display or public performance of copyrighted works constitutes infringement of the copyright owner’s rights. As a condition to Your use of this Website, You agree not to use the Website to infringe the intellectual property rights of others, including ourselves, in any way.
15. Section 230 Notice
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 or transmission of Your Content or the content of other Users or third parties that may appear on or be provided through the Website. We do not create or develop such content, and We are not responsible for the publication of remarks or communications of third parties. Note that federal law allows Us to screen, remove, block or edit any content that We may believe to be offensive, defamatory, obscene or otherwise in violation of or inappropriate under Our policies. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the CDA.
Pursuant to the CDA, We provide notice that parental control protections (such as computer hardware, software, or filtering services) are commercially available, which may assist in limiting minors’ access to online materials. You can research such services by searching for “parental filters” or similar terms through search engines such as Google, Yahoo or Bing.
16. Links to Other Sites
The Website may contain links to third party sites. These links are provided solely as a convenience to You and not as an endorsement by the Company of the contents on such third-party sites. The Company is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third party sites. If You decide to access linked third party sites, You do so at Your own risk, and understand that You may be subject to additional user agreements and/or policies governing the access or use of such sites.
17. The Company’s Liability
Release from Liability for Disputes With Other Users - in the event that You have a dispute with one or more Users, You release the Company (and Our owners, agents, and employees) from any and all claims, demands, losses, damages, or other harm (under tort, contract, or any other basis; actual or consequential; direct or indirect) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
DISCLAIMER OF WARRANTY - THE COMPANY DOES NOT WARRANT THAT THE WEBSITE WILL OPERATE ERROR-FREE OR THAT THE WEBSITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL MECHANISMS. IF YOUR USE OF THE WEBSITE OR THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THE COMPANY IS NOT RESPONSIBLE FOR ANY SUCH COSTS OR LOSSES. THE WEBSITE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY MAKES NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE WEBSITE, SERVICES, SOFTWARE, TEXT, GRAPHICS, AND LINKS.
LIMITATION OF LIABILITY - THE COMPANY’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE OR YOUR USE OF THE WEBSITE OR SERVICES, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED $10
Indemnity - You agree to defend, indemnify, and hold harmless the Company, its officers, directors, employees and agents, from and against any claims, actions or demands, arising or resulting from:
- Your User Content (as defined within this Agreement);
- Your use of the Website and/or the Services; and
- Your breach of any of the terms of this Agreement.
18. Choice of Law/Jurisdiction and Venue
You agree that the laws of the State of New York, without regard to principles of conflicts of laws apply to this Agreement and any and all disputes or claims relating to Your use of the Website or Services. You agree that any lawsuits shall be brought exclusively in the Federal or State courts located in the District of New York, County of New York, and You hereby irrevocably submit to the exclusive personal jurisdiction of such courts for such purpose.
Severability - If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement. If any provision of this Agreement is determined to be unenforceable by a court or an arbitrator, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
Assignment - You may not assign, transfer, or delegate any and/or all of Your rights or obligations under this Agreement without Our written consent. We reserve the right to assign this Agreement and all rights and obligations under the Agreement, in whole or in part.
Notice - Notices by Us to You or other Users may be given by means of electronic messages through the Website, by a general posting on the Website, or by email or conventional mail. Notices by Users may be given by email or conventional mail unless otherwise specified in this Agreement. All notices regarding the Website or Services must be directed to the Company by email at email@example.com.
No Waiver - No waiver or action by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction as to You, such invalidity shall not affect the validity or operation of any other term, clause, or provision and such invalid term, clause, or provision shall be deemed to be severed from this Agreement.
Headings - All headings are solely for the convenience of reference and shall not affect the meaning, construction, or effect of this Agreement.
Data Security Warning - You acknowledge that no website or server is completely secure from hacking, data breach, and other intrusions. Third parties may obtain access to material, content, communications, data, or other information You send to Us, for their own purposes, or for public distribution. Such actions can cause significant injury or damages. By using our Website and Services, You voluntarily assume all risks of data breach, and release Us in the event Your information is obtained by others, or made public in any fashion.
Complete Agreement - This Agreement (including other agreements incorporated herein) constitutes the entire agreement between You and the Company, including as to Your access and use of the Website and Services. This Agreement supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
20. California Residents
Complaints - The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: https://www.dca.ca.gov.
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 Website and/or Services.
21. Annex I: Advertiser Account and Services terms
We appreciate the opportunity to explain the various terms, conditions, and provisions that govern Your creation of an Advertiser Account, and Your use of the Site for marketing and promotional purposes. Please read these terms carefully as they impact Your legal rights. In accessing and using the Website, You agreed to Our User Terms & Conditions of Service. In addition, as an Advertiser, You further agree to be bound by the following:
21.1. Advertiser Account
- To access certain features of the Site and Services, You must register as an Advertiser on the Site, thereby creating a special type of user account allowing You to advertise Your massage therapy services (“Advertiser Account”) as independent therapist or spa. Activation of Your Advertiser Account is contingent upon receipt of valid payment for purchase of an Advertising Subscription & Fees, as explained below in Section 21.2. We further reserve the right to accept or reject your request to create an Advertiser Account in our sole discretion. Our acceptance of You as an Advertiser or establishment of an Advertiser Account does not constitute approval, confirmation, promotion, or endorsement of You, your actions or representations, or any services you advertise, offer or promote through the Website.
- In addition to any information requested by Us to create Your Advertiser Account, You may be asked to provide additional age verification, identification, and/or certification documents. You acknowledge that the form, content, and nature, and ultimate validity of such documentation is within Our sole discretion, and agree to promptly comply with Our requests for such documentation.
- You agree that you will not use Your Advertiser Account for any illegal, unauthorized, deceptive or otherwise improper purpose.
- You warrant that all information provided in creating Your Advertiser Account is true, accurate, current, and complete. You also agree that You are responsible for maintaining the accuracy of such information throughout Your tenure as an Advertiser. If You provide any information that is untrue, inaccurate, not current, or incomplete, or if We have any concerns, in our sole discretion, that such information is or may be untrue, inaccurate, not current, or incomplete, We have the right to deny, suspend, or terminate Your Advertiser Account and refuse any and all current or future use of the Site and Services by You.
- You are prohibited from creating more than one Advertiser Account with the Site, whether directly or indirectly by use of different names or aliases.
- You are prohibited from transferring, assigning, or selling access to Your Advertiser Account to any other party.
- You are prohibited from creating an Advertiser Account if accessing Our Site, or participating in Our Services, violates any law(s) applicable to Your jurisdiction or any jurisdiction where you advertise or provide services.
- You are prohibited from creating an Advertiser Account on behalf of a third party or in a representative capacity for any other party (whether an individual, corporate or other business entity).
- You are entirely responsible for any and all activities conducted by and through Your Advertiser Account.
- You agree that you are utilizing the Site’s Services of your own free will, and that only You will be depicted in any advertising or will offer any services though the Site.
- You agree to promptly notify Us of any unauthorized use of Your Advertiser Account as well as of any other suspected or actual breach of security. The Site, along with its owners, agents, employees, and affiliates hereby disclaim any and all liability arising from fraudulent entry into, and use of, the Site. In its sole discretion, We may terminate any Advertiser Account for concerns of fraudulent access, breach of security or unauthorized use, and may take any and all actions We deem appropriate under the law or by referral to law enforcement authorities.
21.2. Advertising Subscriptions & Fees
- To use the Site and Services as an Advertiser, You must select and accept one of the Site’s advertising packages (“Advertising Subscription”). We offer a selection of Advertising Subscriptions, which provide different features and options, enabling You to maximize Your use of the Services.
- Rates. Pricing for each Advertising Subscription is presented on the Site and in connection with Your establishment of an Advertising Account. For current pricing rates and details for Advertising Subscriptions, please visit: www.myspalist.com. Advertising Subscription rates and terms are subject to change in our discretion at any time. If we change rates or material terms as to existing Advertiser Accounts, We will provide notice of such changes and an opportunity for Advertisers to cancel within thirty (30) days.
- You agree to pay all fees associated with Your Advertiser Subscription and Your Advertiser Account immediately when due, and in accordance with the billing terms stated below, or as set forth by Our third party payment processor, if applicable.
21.3. Billing Terms
- We may contract with third party payment processors concerning billings and payments relating to Your Advertiser Account. You understand and agree that we may do so and that such entities may impose additional terms and conditions governing payments and/or processing, and You are wholly responsible for abiding by the same.
- Automatic Recurring Billing. We may use automatic recurring billing for certain Advertising Subscriptions and payment methods, and YOU EXPRESSLY UNDERSTAND AND AGREE THAT FOR ANY SUCH ADVERTISING SUBSCRIPTION YOU ACCEPT, WE MAY AUTOMATICALLY BILL YOU OR ASSESS CREDIT CARD CHARGES TO YOU ON A RECURRING BASIS, you affirmatively consent to such charges, and you understand that you may cancel these recurring charges at any time by providing seven (7) days’ advance notice to Us of Your cancellation.
- Unless and until Your Advertiser Subscription is cancelled in accordance with the applicable termination provisions set forth in this Agreement, Your use of the Site authorizes the Company, or Our third party payment processor, to charge Your chosen payment method for the recurring and ongoing cost of Your selected Advertiser Subscription. Unsuccessful payment processing attempts may result in additional fees charged to the Your Advertiser Account, and/or suspension or termination of Your Advertiser Account.
- Refunds - You understand and agree that it is Our standard policy that charges and/or fees associated with Your Advertiser Account are nonrefundable. Deviating from Our standard refund policy is within Our sole discretion.
- You agree to pay any outstanding balance immediately upon cancellation or termination of Your Advertiser Account. This provision shall survive any termination or cancellation of this Agreement.
- You must promptly inform Us, and Our third party payment processor (if applicable) of all changes regarding Your credit card, address, or any other information needed for billing and/or payment for the Site and Services. You acknowledge that We are permitted to check your payment method and associated information, including by use of databases and services to prevent fraud and/or identity theft.
- Chargebacks. You are responsible for any credit card chargebacks, cancelled payments, and/or dishonored checks along with any related fees that the Site incurs with respect to Your Advertiser Account. If You fail to reimburse Us, or the relevant third party payment processor, for any credit card chargebacks, dishonored checks, or related fees within thirty (30) days of Our initial demand for reimbursement, You agree that You will pay Us one hundred dollars ($100) in additional liquidated damages as well as any costs incurred by Us for each such fee incurred.
- Billing Errors. If You believe that You have been erroneously billed, please provide prompt notice to Us and any third party payment processor that rendered the bill. If You do not provide notice within thirty (30) days after a charge first appears on any account statement provided to You, such charge 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 the bill being rendered to You. These terms shall supplement and be in addition to any terms required by third party payment processors that We engage to provide billing services. You are responsible for review and compliance with such entity’s terms in addition to those contained in this Agreement, prior to acceptance of this Agreement.
- Stolen Cards and Fraudulent Use of Credit Cards, Debit Cards or Payment Methods - We take credit card fraud very seriously. Discovery that any Advertiser has used a stolen or fraudulent credit or debit card, or other payment method, will result in the notification of the appropriate law enforcement agencies and termination of such Advertiser’s account.
21.4. Termination of Advertiser Account
- You may cancel Your Advertiser Account at any time by accessing Your private Advertiser Account portal on the Website and indicating Your cancellation.
- Termination by Us - You agree and acknowledge that We may terminate Your account with or without cause, at any time in Our sole discretion. Without limiting other remedies, We may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate Your access and use of the Site and Services at any time, with or without advance notice, if, in our sole discretion:
- We believe that You have breached any material term of this Agreement or other agreements regarding use of the Site;
- We are unable to verify or authenticate any information You provide to Us;
- We believe that Your actions may cause legal liability for Us, Our users, or other parties; or
- We decide to cease operations or to otherwise discontinue any services or options provided by the Site or parts thereof.
- You agree that if Your access is terminated by Us, You will not attempt to regain access to the Site, using the same or different registration or payment method information, without prior written consent from Us.
- You agree that neither the Site nor any third party acting on Our behalf shall be liable to You for any termination of Your access to any part of the Site.
21.5. Advertiser Content
- Advertiser Content - Advertiser Content includes any text, images, and any other content or media associated with Your Advertiser Account, published or transmitted via the Site or Services, or otherwise provided by You to the Site or to Users through the Site’s Services. Advertiser Content shall include material uploaded to the Site, including but not limited to the content of all advertisements, along with any private photographs/videos submitted to Users of the Site. You agree that any and all Advertiser Content associated with Your Advertiser Account will comply with all terms set forth in this Agreement and any other policies that govern the use of the Site and Services. We reserve the right to modify, update, and/or amend guidelines and policies at any time, and You agree to be bound by and comply with all such guidelines and policies from and after the time they are instituted.
- License to Use Your Advertiser Content:
- License Grant - With regard to all Advertiser Content, You hereby grant Us a royalty-free, perpetual, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, transmit, create derivative works from, distribute, perform, communicate to the public, and display such Advertiser Content (in whole or in part) worldwide and/or to incorporate such Advertiser Content into any form, medium, or technology now known or later developed. Further, You hereby grant to Our Users, as defined in the User Agreement, a nonexclusive license to access the Advertiser Content via the Site and Services.
- You understand and agree that all license rights granted to Us shall be fully sub-licensable, assignable, and transferable, within Our sole discretion. Accordingly, We reserve the right to sub-license, assign, or transfer Our right(s) in any and all Advertiser Content to a third party entity in Our discretion.
- You understand and agree that by uploading Advertiser Content, You are consenting to the above license in its entirety, which provides Us the rights to:
- Reproduce, transmit, communicate, display, or distribute Advertiser Content, on or as part of Our Site(s), on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
- Reproduce Advertiser Content 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); and/or
- Adapt, modify, or alter Advertiser Content or otherwise create derivative works based upon it; and for all other reasonable promotional or commercial uses either as part of the operation of Our Site(s), or as a promotion or operation of any derivative or related businesses.
- You represent and warrant that You have all rights, including intellectual property and publicity rights, to grant the license set out above. Advertiser Content suspected and/or determined to be infringing may result in the suspension or termination of Your Advertiser Account.
- You acknowledge and agree that the Site is an online advertising network that can be accessed by users throughout the world. You therefore understand that any material that you post to the Site may be viewed by current and/or former friends, colleagues, associates, and acquaintances.
- Due to the perpetual nature of the licensed rights in the Advertiser Content set forth above, removal of any such Advertiser Content is within Our sole discretion. Therefore, You understand and agree that upon termination or cancellation of Your Advertiser Account, any associated Advertiser Content may continue to be utilized by the Site and/or the Company.
- Upon Your use of the Site or Services as an Advertiser, You accept sole responsibility for any activity or material associated with Your Advertiser Account. Should Your Advertiser Content violate any laws or regulatory policies, Your actions shall constitute a material breach of this Agreement.
- Restrictions on Advertiser Content - Your Advertiser Content is expressly prohibited from including any of the following (violation of such restrictions is determined within Our sole discretion):
- Text or images, or other materials concerning sexual activity;
- Text, images, or other materials that include private or personal information of any person without that person’s consent;
- Text, images, or other materials that violate the intellectual property or publicity rights of third parties;
- Defamatory or derogatory text or images directed towards any person, group, and/or entity (including but not limited to other users, the Site, and Company);
- Express or implied promotion of a competitor’s website;
- Disclosure of personal contact information pertaining to other Advertisers;
- Generic images of objects, places, or things other than, or not incorporating, You as the Advertiser;
- Images that violate our Photo Guidelines;
- Fake, inaccurate, or excessively dated depictions of You as the Advertiser; and
- Images or text used without the authorization of its legal owner.
- We reserve all rights, in Our sole discretion, to reject and/or remove any Advertiser Content, at any time before or after publication, although We undertake no obligation to monitor Advertiser Content, or take any such actions.
- You agree to defend and indemnify Us should any user or third party be harmed by Your actions or should We be obligated to defend any claims including, without limitation, any criminal or civil action brought by any party due to Your actions as an Advertiser or a user of the Site.
- You agree to defend, indemnify, and hold harmless the Company its officers, directors, shareholders, employees, independent contractors, representatives and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal fees and costs, for any and all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your conduct as an Advertiser, or Your breach of this Agreement or any other agreement relating to use of the Website. We will notify You of any such claim or suit, provided, however, that any delays in providing notice will not waive or prejudice our rights to indemnification. We will cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to control the defense of such claim, compromise or settle any claim (after consultation with You), and choose Our own legal counsel; however, We are not obligated to do so. You agree to promptly pay any and all costs, fees, or expenses incurred by Us in connection with any claim subject to indemnification.
- In order to maintain the integrity of the Site and Services, or to investigate complaints, You agree to allow Us to access Your Advertiser Account and any other information You have submitted or created for as long as reasonably required to investigate the complaint or protect the Services of this Site.
- You agree to promptly notify Us of any incident, claim, or allegation that may impact the indemnification obligations set forth above.
21.7. Limitation of Liability
- In no event shall the Company (or its officers, directors, shareholders, employees, independent contractors, representatives or agents) 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.
- 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 no more than one (1) year from the accrual of the applicable cause or causes of action or one hundred dollars ($100.00), 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.
- You acknowledge that no website or server is completely secure from hacking, data breach, or other nefarious activities. Third parties may obtain access to material, content, communications, data, or other information You send to Us and may use or publicly disclose such information. Such actions can cause significant humiliation, embarrassment, injury, and damage to reputation, privacy and publicity rights. By using Our Website and Services, You voluntarily assume all risks of data breach, and release Us from any and all claims in the event Your information is obtained by others, or made public in any fashion.
21.8. Force Majeure
We 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; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s or Services’ performance.
21.9. Dispute Resolution
- Disputes Subject to Arbitration. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR ADVERTISER ACCOUNT OR USE OF THE WEBSITE OR SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that You may assert claims in small claims court if Your claims qualify, and You or We may bring suit in court to enjoin infringement or other misuse of intellectual property rights. The Federal Arbitration Act and federal arbitration law apply to this Agreement.
- Arbitration Procedures. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, statutory damages, or attorneys’ fees as allowed by law), and must follow the terms of this Agreement and other agreements between You and Us as a court would.
- Commencing an Arbitration; Governing Rules. Arbitrations will be administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules, as modified by this Agreement. The AAA’s rules are available at www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA rules. The format of the arbitration (whether conducted in person, by telephone, or based on written submissions) and the location of any in-person hearings will be determined by mutual agreement or by the AAA rules. To bring an arbitration claim, You must send a demand describing the dispute along with the filing fee as provided in the AAA rules to American Arbitration Association, Case Filing Services, 1101 Laurel Oak Road, Suite 100 Voorhees, NJ 08043, and send a copy of the demand to Us by email at firstname.lastname@example.org. The AAA also provides a form Demand for Arbitration on its website.
- No Class Action or Representative Claims. You and We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, You and We each waive any right to a jury trial.