TERMS & CONDITIONS/USER AGREEMENT
Effective Date: Sept. 1, 2015
Last Modified: Sept. 1, 2015
Sites Covered: www.3dyank.com
INTRODUCTION Welcome to Our Websites User Agreement (hereinafter 'Agreement' or 'Terms and Conditions.') The provisions of this Agreement will govern Your use of Our Website(s), and You should therefore take some time to read the Agreement carefully. Our Website is different from many other websites on the Internet as it contains advertisements, communications, and links posted by independent third parties, over which We exert no control. We do not get involved in any disputes that may develop between Our advertisers and others, and We do not facilitate communication between third parties. Therefore, You are urged to use Your own good judgment and common sense when responding to such advertisements, as We are not responsible for any interactions occurring between Our Users and Our advertisers. Federal law protects sites like Ours from civil claims, so We encourage You to independently research any information found in Our advertisements, before making any decisions. We hope that You thoroughly enjoy Our services, and anticipate that You will find Our Website useful and informative. Should You have any questions or comments regarding Our Website, or its policies, please feel free to contact Us at: email@example.com .
1. PRELIMINARY PROVISIONS
1.1. Through these Terms and Conditions, We are placing legal conditions on Your use of this Website and making certain promises to You:
1.1.1. You must agree to all of the conditions in this Agreement. You do not need to use Our Website, therefore if You do not wish to be bound by each and every provision in this Agreement, then You are not welcome to use this Website and should leave and use another service.
1.1.2. This Website is for adults only. If You are under the age of eighteen (18) You are not to use this Website at all. Misrepresentation of Your age to gain access to Our Website is considered a breach of this Agreement and computer hacking under federal law. If You are under eighteen (18) years of age, STAY OUT!
1.2. If You do not understand all of the terms in this Agreement, then You should consult with a lawyer before using the Website.
1.3. Party Definitions and Introductory Terms -The operative parties referred to in this Agreement are defined as follows:
1.3.1. Bastian Media LLC, is the operator of www.3dyank.com . Hereinafter, Bastian Media LLC shall be referred to as 'Company.' When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Company as publisher of this Site and/or any other site that we may choose to operate in the future. Additionally, when the terms 'the Site' or 'Site' are used, these terms refer to any website published by Us, unless a site is specifically exempt from this Agreement. Our Site(s), and the Services the Site provides ('Services'), may contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other website content owned, operated, licensed, or controlled by the Company (collectively, 'Materials').
1.3.2. You, the User -As the User of this Site and/or Services, this Agreement will refer to the User as 'You' or through any second-person pronouns, such as 'Yours,' etc. Hereinafter, the User of the Site and/or Services shall be referred to in applicable second-person pronouns. You certify that You are over eighteen (18) years of age.
1.3.3. User vs. Member -For the purposes of this Agreement, all Members are Users, but not all Users are Members. This Agreement applies to all Users whether they are Members or not. You become a User by accessing this Site or Service in any way. You need not become a Member of the Site to make this Agreement apply to You. You become a Member by registering with the Site for a User ID and password, as discussed below.
1.4. What this Agreement is -This Agreement is a legal contract between You and the Company. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the Site in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site and any other services provided by the Company. Nothing in this Agreement is intended to create any enforcement rights by third parties.
1.5. Consideration -Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our 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 Our Site(s) and/or Services.
1.6. Electronic Signatures / Assent Required:
1.6.1. Nobody is authorized to access this Site or use the Services unless they have signed this Agreement. Such signature does not need to be a physical signature, since electronic acceptance of this Agreement is permitted by the Electronic Signatures in Global and National Commerce Act (E-Sign Act) and similar federal and state laws. You manifest Your agreement to this Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked or will click a button containing the words 'I agree' or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You click any link, button, or other device provided to You in any part of Our Site's interface, then you have legally agreed to all of these Terms and Conditions. Additionally, by using any part of Our Site or Services in any manner, You understand and agree that We will consider such use as Your affirmation of Your complete and unconditional acceptance to all of the terms in this Agreement.
1.6.2. If You fail to sign this Agreement, You understand that You are an unauthorized user of the Site and Service, despite any payments made or subscriptions sold to You. No act or omission by Us should be interpreted as a waiver of the requirement that You assent to this Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Our Services. However, if You fail to electronically sign this Agreement, You stipulate to and agree to pay Us two hundred and fifty dollars ($250) each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including Attorney's fees and costs, incurred in collecting this unauthorized access fee from You.
1.7. If You are seeking information regarding any illegal activities, please leave this Site immediately and do not attempt to use the Services. You acknowledge that You are aware of the community standards in your community, and You will only access the content on the Site and/or use the Services if You believe that the content on the Site does not offend the community standards prevalent in Your community.
1.8. You agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or country.
1.9. Revisions to this User Agreement:
1.9.1. From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral 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. To the extent 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.
1.9.2. We agree that 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 the Agreement. You agree to periodically re-visit this web page, and to use the 'refresh' button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the 'last modified' date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the 'last modified' date has changed, then You can be certain that something in the Agreement has been changed, and that you need to re-review it in order to determine how Your rights and responsibilities may have been affected by the revisions.
1.9.3. Waiver 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.
1.10. Incorporations by Reference. Although this Agreement represents the primary terms and conditions of service for Our Site, additional guidelines and rules are hereby incorporated by reference. The document(s) which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
2. EXPLANATION OF ACCESS AND MEMBERSHIP
2.1. Access and limited license All Users may access certain public areas of the Site. You understand that all We are providing You is access to Our Services as We provide them. You need to provide Your own access to the Internet, and any Internet access or other fees that You incur to access Our Site and use Our Services are Your sole responsibility. We are not providing any hardware nor software to You and You need to purchase or license the necessary hardware and software to access the Site and Services. This Agreement covers all public and non-public areas of the Site.
2.2. To access certain features of the Site and Services, You must register as a Member of the Site.
2.3. Membership may not be transferred or sold to a third party. The Website and its affiliates disclaim any and all liability arising from fraudulent entry and use of the Website. If a User fraudulently obtains access, the Website may terminate membership immediately and take all necessary and appropriate actions under applicable federal, state, and international laws.
2.4. Fees for Members and Types of Memberships Our Members are provided access to portions of Our Services by paying a monthly fee. This monthly fee is billed on a recurring cycle of every thirty (30) days. Should You join as a trial Member, You are permitted to use Our Site and Services at no cost for a maximum of three (3) days, at which point Your Membership will be converted into a full Membership billing at $48.37 unless cancelled during said trial period.
2.4.1. Membership fees to the Site are prominently displayed prior to Your subscription thereto. You agree to pay all Membership fees when due according to these billing terms. At the time of registration, You must select a payment method. We reserve the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. Your account will be deemed past due if it is not paid in full by the payment due date. If Your account remains unpaid for more than thirty (30) days after the invoice date, You agree to pay interest on the past due amount at a monthly rate of one and a half percent (1.5%), or the highest amount allowed by law, whichever is lower, compounded daily, plus any additional collection costs, credits, charge backs and attorneys' fees. Your card issuer agreement may contain additional terms with respect to Your rights and liabilities as a card holder. You agree to pay all amounts due to Us immediately upon cancellation or termination of Your account. We reserve the right to make changes to Our fees and billing methods, including the addition of supplemental charges for any content or services provided by the Site, with or without prior notice to You, at any time.
THIS SITE MAY USE AN AUTOMATIC REBILL CYCLE ACCORDING TO THE MEMBER'S SELECTED PAYMENT OPTION.
2.4.2. Billing Errors. If You believe that You have been erroneously billed, please notify Us immediately of such error, along with any third party billing entity that rendered the bill. 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 the bill being rendered to you. These terms shall supplement and be in addition to any terms required by third party billing entities 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.
2.5. Termination of Your Membership or User Account.
2.5.1. You may cancel Your membership at any time by visiting Our customer support center at: http://bastianhelp.com . Additionally, We offer cancellation via Our toll free number at .
2.5.2. 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:
126.96.36.199.We believe, in Our sole discretion, that You have breached any material term of this Agreement or the document(s) it incorporates by reference;
188.8.131.52.We are unable to verify or authenticate any information You provide to Us;
184.108.40.206.We believe, in Our sole discretion, that Your actions may cause legal liability for You, Our Users or Us; or
220.127.116.11.We decide to cease operations or to otherwise discontinue any services or options provided by the Site or parts thereof.
2.5.3. 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.
2.5.4. You agree that if Your access is terminated by Us, You will not attempt to regain access to the Website using the same or different username without prior written consent from Us.
2.6. Stolen Cards and Fraudulent Use of Credit Cards: We take credit card fraud very seriously. Discovery that any Member has used a stolen or fraudulent credit card will result in the notification of the appropriate law enforcement agencies and termination of such Member's account.
2.7. To access the Site or some of the resources it has to offer, You may be asked to provide certain registration details or other information. In order to verify Your identity, some of this information may be personal, private or detailed. In connection with completing the online registration form, You agree to provide true, accurate, current and complete information about Yourself as prompted by the registration form (such information being the "Registration Data"); and You further agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while You are a Member. While we use reasonable efforts to protect the personal information of others from inadvertent release or misappropriation, We are not responsible for the intentional or criminal acts of third parties such as hackers or 'phishers.'
2.8. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and changes in Your credit card used in connection with billing and/or payment for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your account. If You fail to reimburse Us 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 fee incurred.
2.9. You are entirely responsible for any and all activities conducted through Your account. You agree to notify Us immediately of any unauthorized use of Your password or accounts as well as of any other breach of security.
2.10. Subject to Your acceptance of this Agreement, We grant You a limited, nonexclusive, nontransferable personal license to access and use the Site, Materials, and the Services contained therein. We provide the Materials and Services on this Site for the personal, non-commercial use by Users of the Site. Users of this Site are granted a single copy license to view the Materials (on a single computer only).
2.11. All Materials and Services available on the Site shall be for private non-commercial use only, and all other uses are strictly prohibited. If You are a business entity or commercial concern, Your presence on the Site is not allowed unless it is expressly authorized in writing by Us. We reserve the right to pursue vigorous legal action against unauthorized access by business and commercial entities.
2.12. We reserve the right to limit the amount of Materials viewed. You agree to prevent any unauthorized copying of the Site, or any of the Materials contained therein. Any unauthorized use of the Site or any of the Materials contained therein terminates this limited license effective immediately. This is a license to use and access the Site for its intended purpose and is not a transfer of title. You will not copy or redistribute any of the content appearing on this Site. We reserve the right to terminate this license at any time if You breach or violate any provision of this Agreement, in which case You will be obligated to immediately destroy any information or Materials You have downloaded, printed or otherwise copied from this Site. Violators of this limited license may be prosecuted to the fullest extent under the applicable law.
2.13. Service Interruption: From time to time due to technological factors, scheduled software uploads and other factors beyond Our control, the Service may be temporarily interrupted and/or access to the Site and the ability to log into the Site may not be available. You agree to hold Us harmless against any such interruption of or inability to access the Service.
2.14. Agreement to Receive Notifications and Other Communications: We reserve the right to send electronic mail or other messages to You and to other Members. The purpose of these communications may include but is not limited to:
2.14.1. Provide information to You regarding products or services offered by Our affiliates or partners;
2.14.2. Inform You about any of Our related products or services;
2.14.3. Provide You with information about any item that We think, in Our sole discretion, may be of interest to You.
3. SPECIAL CONSIDERATIONS REGARDING MINORS
3.1. Age of Majority. In order to use the Site or any Services provided by the Company, You must have attained the age of majority in Your jurisdiction. You represent and warrant You are at least eighteen (18) or twenty-one (21) years of age, depending on the age of majority in Your jurisdiction, and that You have the legal capacity to enter into this Agreement. If You are not at least eighteen (18) or twenty-one (21) years of age, depending on the age of majority in Your jurisdiction, You must exit the Site immediately and may not use or access the Site or the Services in any manner.
3.1.1. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User's age.
3.1.2. You represent and warrant that You will not allow any minor access to this Site or Services. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help Users to limit minors' access to harmful material. You acknowledge that if Your computer or mobile device can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by minors. You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to keep any age-restricted content from being displayed to Your children or wards.
3.2. WE HAVE A ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY.
3.2.1. You understand that all depictions of all persons on this Site and in all Materials produced or published by Us are of persons over the age of eighteen (18) as of the date of the production of the depiction. We take great measures to ensure that no underage individuals are depicted in any of Our Materials.
3.2.2. If You seek any form of child pornography (including so-called 'virtual' child pornography), You must exit this Site and cease using Our Services immediately. We do not provide this kind of material and We do not tolerate those who provide this kind of material nor do We tolerate consumers of this kind of material.
3.2.3. In order to further Our zero-tolerance policy, You agree that You will 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 .
3.2.4. Include with Your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken.
3.2.5. We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If You suspect other outside websites are participating in unlawful activities involving minors, please report them to a child pornography reporting service such as ASACP.org;
or the N.C.M.E.C. Cybertip Hotline:
4. IMAGES AND CONTENT
4.1. Our Site(s) and Services contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other website owned, operated, licensed, or controlled by Us.
4.2. You acknowledge and stipulate that all of the Materials constitute expressive content that is fully protected by the First Amendment to the United States Constitution.
4.3. You acknowledge and understand that some or all of the Materials on Our Site and transmitted via Our Services may be inappropriate for viewing by minors. You acknowledge that You are aware of the nature of the Materials provided by or through the Site and that You are not offended by such Materials, and that You access the Site and Services freely, voluntarily, and willingly, and for Your own personal enjoyment.
4.4. 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 at websites such as: http://www.getnetwise.org or http://www.child-internet safety.com/internet_filters.php , among others. Please note that We make no representation or warranty regarding any of the products or services referenced 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. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site or Services from being displayed or accessed by Your children or wards.
4.5. Pursuant to the Communications Decency Act ('CDA'), 47 U.S.C. ¤ 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that We operate 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 the content of other Users and third parties. 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 or block 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. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this Agreement between You and Us.
5. RESTRICTIONS ON USE OF OUR SITE AND SERVICES:
5.1. You agree that You will only use the Site and Services for purposes expressly permitted and contemplated by this Agreement. You may not use the Site and Services for any other purposes, including commercial purposes, without Our express prior written consent.
5.2. Without Our express prior written authorization, You may not:
5.2.1.Duplicate any part of Our Site or the Materials contained therein or received via the Services (except as expressly provided elsewhere in this Agreement);
5.2.2.Create any derivative works based on Our Site or any of the Materials contained therein or received via the Services, and You agree and stipulate that any and all derivative works are NOT 'fair use;'
5.2.3.Use Our Site or Services, or any of the Materials contained therein, for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT 'fair use';
5.2.4.Re-distribute Our Site or any of the Materials contained therein or received through the Services, and You hereby agree and stipulate that any and all such uses are NOT 'fair use;'
5.2.5.Remove any copyright or other proprietary notices from Our Site or any of the Materials contained therein;
5.2.6.Frame or utilize any framing techniques in connection with Our Site or any of the Materials contained therein;
5.2.7.Use any meta-tags, pay-per-click advertising, 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 Us is an infringement upon Our trademark rights, and You stipulate to liquidated damages of five thousand dollars ($5000) 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;
5.2.8.'Deep-link' to any page of Our Site, or avoid agreement to the Site's Terms & Conditions; You may only link to the main entry page;
5.2.9.Circumvent any encryption or other security tools used anywhere on the Site or in conjunction with the Services (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);
5.2.10.Use any data mining, bots, or similar data gathering and extraction tools on the Site or in conjunction with the Services;
5.2.11.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 Services or any of Your rights to access and use the Materials or Services as granted specifically by this Agreement; or
5.2.12.Bookmark any page of the Site beyond the registration log-in screen or home page;
5.2.13.Use Our Services for any commercial purpose unless expressly agreed to by Us in writing and at Our sole discretion. Without such consent by Us, Your use of the Site and Services is strictly for personal use;
5.2.14.Use Our Services to impersonate any other User or person;
5.2.15.Use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, publicity or other proprietary right of any party;
5.2.16.Upload or attempt to upload files that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's property;
5.2.17.Download any file posted by another user of a Service that You know, or reasonably should know, cannot be legally distributed in such manner;
5.2.18.Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
5.2.19.Restrict or inhibit any other User from using and enjoying the Services;
5.2.20.Harvest or otherwise collect information about others, including e-mail addresses or other personally-identifiable information;
5.2.21.Violate any applicable laws, policies, or regulations;
5.3. You agree to cooperate with Us in causing any unauthorized use to cease immediately. You are solely responsible for submitting any material that violates any United States or international laws even if a claim arises after Your service is terminated, and by doing so, Your actions shall constitute a material breach of this Agreement and the Site shall terminate all of Your rights under this Agreement. Nothing contained in this Agreement shall obligate Us to monitor or investigate any use of Our Services by Our Users or other third parties, other than as required by applicable law.
5.4. Interference. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of Our Materials or any other Materials from Our Site. You hereby agree not to use any automatic device or manual process to monitor 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. If You do not adhere to this provision of this Agreement, You hereby stipulate to and agree to pay liquidated damages of five thousand dollars ($5,000) plus any and all fees associated with recovery of these damages, including attorney's fees and costs.
6. STIPULATED LIQUIDATED DAMAGES:
6.1.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.
6.2.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.
7. DISCLAIMER OF WARRANTY:
7.1.You expressly agree that use of the Site and Services, or any of the Materials contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site and Services 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.
7.2.The Site and Services, 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.
7.3.We make no representations or warranties that the Site and Services, or any Materials contained therein, will be uninterrupted, timely, secure, or error free; nor do We make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site and Services or any of the materials contained therein.
7.4.You understand that We cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. We do not assume any responsibility or risk for Your use of the Internet.
7.5. We make no warranty regarding any goods or services purchased or obtained through the Site and/or Services or any transaction entered into through the Site and/or Services, and We are not responsible for any use of confidential or private information by sellers or third parties.
7.6.The warranties and representations set forth in this Agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person.
8. DISCLAIMER AND INDEMNIFICATION:
8.1.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.
8.2.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.
8.3.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.
8.4.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.
8.5.This Service is for Amusement Purposes.
8.5.1.You understand and accept that Our Site and Services is an entertainment and recreational service. All content depicts consenting models over the age of eighteen (18) that 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.
8.5.2.You understand, acknowledge, and agree that some of the User profiles posted on this site may be fictitious. You understand, acknowledge, and agree that the information, text, and pictures contained in these profiles do not pertain to any actual person, but are included for entertainment purposes only. Nothing contained in any of the aforementioned profiles are intended to describe or resemble any real person -living or dead. Any similarity between these profile descriptions and any person is purely coincidental.
8.6.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:
8.6.1.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, 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.
8.6.2.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.
9. LIMITATION OF LIABILITY:
9.1.In no event shall We (or Our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person's use, misuse, or inability to use the 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.
9.2.In no event shall Our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of 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.
10. LINKS AND LINKING:
10.1.Some websites which are linked to the Site are owned and operated by third parties. Because We have no control over such websites and resources, You acknowledge and agree that We are not responsible or liable for the availability of such external websites or resources, and do not screen or endorse them, and are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
10.2.You further acknowledge and agree that We 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.
10.4.Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by Us of such websites or the content, products, advertising, or other materials presented on such Site, but are for Your convenience.
10.5.You hereby agree to hold Us harmless from any and all damages and liability that may result from the use of links that may appear on the Site or via the Services. We reserve the right to terminate any link or linking program at anytime.
11. TRADEMARK INFORMATION:
11.1.The name of the Site, 3dyank, is considered a service mark owned by Us. We aggressively defend Our intellectual property rights.
11.2.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.
11.3.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.
12. COPYRIGHT INFORMATION:
12.1.The Materials accessible from the Site, Services, and any other World Wide Website 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.
12.2.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.
12.3.Modification or use of the Materials except as expressly provided in this Agreement violates Our intellectual property rights.
12.4.Neither title nor intellectual property rights are transferred to You by access to the Site and Services.
12.5.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.
13. NOTICE OF DMCA NOTICE & TAKEDOWN POLICY AND PROCEDURES
13.1.This Site qualifies as a 'Service Provider' within the meaning of 17 U.S.C. ¤ 512(k)(1) of the Digital Millennium Copyright Act ('DMCA'). Accordingly, it is entitled to certain protections from claims of copyright infringement under the DMCA, commonly referred to as the 'safe harbor' provisions. We respect the intellectual property of others, and We ask Our Users to do the same. Accordingly, We observe and comply with the DMCA, and have adopted the following Notice and Takedown Policy relating to claims of copyright infringement by Our customers, subscribers or Users.
13.2.Notice of Claimed Infringement: If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide Our Designated Copyright Agent (identified below) with the following information:
13.2.1.an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
13.2.2.description of the copyrighted work or other intellectual property that You claim has been infringed;
13.2.3.a description of where the material that You claim is infringing is located on the Site (preferably including specific url's associated with the material);
13.2.4.Your address, telephone number, and email address;
13.2.5.a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and,
13.2.6.a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
You may send Your Notice of Claimed Infringement to:
Lawrence G. Walters, Esq.
Walters Law Group
781 Douglas Avenue Altamonte Springs, FL 32714 Fax: (407) 774-6151 Email: Notice [at] DMCANotice [dot] com
NOTE: Please do not send other inquires or information to our Designated Agent.
13.3.Abuse Notification: Abusing the DMCA Notice procedures set forth above, or misrepresenting facts in a DMCA Notice or Counter-notification, can result in legal liability for damages, court costs and attorneys fees under federal law. See; 17 U.S.C. ¤ 512(f). These Notice and Takedown Procedures only apply to claims of copyright infringement by copyright holders and their agents not to any other kind of abuse, infringement or legal claim. We will investigate and take action against anyone abusing the DMCA notification or counter-notification procedure. Please ensure that You meet all of the legal qualifications before submitting a DMCA Notice to Our Designated Agent.
14. TAKE DOWN PROCEDURE
14.1.The Site implements the following 'notification and takedown' procedure upon receipt of any notification of claimed copyright infringement. The Site reserves the right at any time to disable access to, or remove any material or activity accessible on or from any Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent. It is the firm policy of the Site to terminate the account of repeat copyright infringers, when appropriate, and the Site will act expeditiously to remove access to all material that infringes on another's copyright, according to the procedure set forth in 17 U.S.C. ¤512 of the Digital Millennium Copyright Act ('DMCA'). The Site's DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with ¤512 of the DMCA, but does comply with three requirements for identifying sites that are infringing according to ¤512 of the DMCA, the Site shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements. When the Designated Agent receives a valid notice, the Site will expeditiously remove and/or disable access to the infringing material and shall notify the affected User. Then, the affected User may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the User has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within ten to fourteen (10-14) days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity. The Site reserves the right to modify, alter or add to this policy, and all Users should regularly check back to these Terms and Conditions to stay current on any such changes.
15. DMCA COUNTER-NOTIFICATION PROCEDURE
15.1.If the Recipient of a Notice of Claimed Infringement ("Notice") believes that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed in accordance with the procedures outlined above, the Recipient is permitted to submit a counter-notification pursuant to Section 512(g)(2)&(3) of the DMCA. A counter-notification is the proper method for the Recipient to dispute the removal or disabling of material pursuant to a Notice. The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations which may cause any claims to be brought against the Site relating to the actions taken in response to the counter-notification.
15.2.To submit a counter-notification, please provide Our Designated Copyright agent the following information:
15.2.1.a specific description of the material that was removed or disabled pursuant to the Notice;
15.2.2.a description of where the material was located within the Site or the Content before such material was removed and/or disabled (preferably including specific url's associated with the material);
15.2.3.a statement reflecting the Recipient's belief that the removal or disabling of the material was done so erroneously. For convenience, the following format may be used:
'I swear, under penalty of perjury, that I have a good faith belief that the referenced material was removed or disabled by the service provider as a result of mistake or misidentification of the material to be removed or disabled.'
15.2.4.the Recipient's physical address, telephone number, and email address; and,
15.2.5.a statement that the Recipient consents to the jurisdiction of the Federal District Court in and for the judicial district where the Recipient is located, or if the Recipient is outside of the United States, for any judicial district in which the service provider may be found, and that the Recipient will accept service of process from the person who provided the Notice, or that person's agent.
Written notification containing the above information must be signed and sent to:
Lawrence G. Walters, Esq.
Walters Law Group
781 Douglas Ave. Altamonte Springs, FL 32714 Fax: (407) 774-6151 Notice [at] DMCANotice [dot] com
Do not send any other information or material to the DMCA Agent.
15.3.After receiving a DMCA-compliant counter-notification, Our Designated Copyright Agent will forward it to Us, and We will then provide the counter-notification to the claimant who first sent the original Notice identifying the allegedly infringing content.
15.4.Thereafter, within ten to fourteen (10-14) days of Our receipt of a counter-notification, We will replace or cease disabling access to the disputed material provided that We or Our Designated Copyright Agent have not received notice that the original claimant has filed an action seeking a court order to restrain the Recipient from engaging in infringing activity relating to the material on the Site's system or network.
- MODIFICATIONS TO POLICY: The Site reserves the right to modify, alter or add to this policy, and all affected persons should regularly check back regularly to stay current on any such changes.
- EXPORT CONTROL:
17.1.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.
17.2.You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
17.3.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.
17.4.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.
- 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.
19.1.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.
19.2.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.
19.3.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.
19.4.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.
20. COMMUNICATIONS NOT PRIVATE:
20.1.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.
21. FORCE MAJEURE:
21.1.We shall not be responsible for any failure to perform due to unforeseen circumstances or 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.
22.1.Governing Law. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation or arbitration permitted under this Agreement must be, without exception, initiated in Orange County, Florida.
22.1.1.All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement, other than those subject to the arbitration provision below, shall be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida.
22.1.2.The parties agree to exclusive jurisdiction in, and only in, Orange County, Florida.
22.1.3.The parties agree to exclusive venue in, and only in, Orange County, Florida.
22.1.4.The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.
22.1.5.All parties hereby waive any right to assert the doctrine of forum nonconveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
22.1.6.All parties stipulate that the state and federal courts located in Orange County, Florida shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.
22.1.7.Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
22.1.8.Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
22.1.9.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 an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
23. ARBITRATION PROVISIONS:
23.1.If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party 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 under applicable worker's compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be conducted in Orange County, Florida and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall be willing to execute an oath of neutrality.
23.2.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.
23.3.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.
23.4.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.
24. MISCELLANEOUS PROVISIONS:
24.1.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.
24.2.Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
24.3. Complaints California Residents: 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/online_services/complaints/consumer complaints.html .
24.4.No Waiver. No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
24.5.Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
24.6.Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Site, Services and the Materials contained therein, and Your use of the Site and Services, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
24.7.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, 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 on their own initiative and are solely responsible for determining compliance with all applicable local laws.
This document prepared by: Walters Law Group; www.FirstAmendment.com . All Rights Reserved. © Walters Law Group (2010).