Effective date: July 21, 2016
Updated: May 24, 2018
Burrshark Works Inc., a Delaware Corporation (the “Company”), welcomes you to TeddysGirls.net (the “Website”). It is important to the Company that you and other visitors have the best possible experience while using the Website, and that, when you use the Website, you understand your legal rights and obligations. Please read this agreement, which governs your use of the Website, including any content, functionality, and services offered on or through the Website. Your access to the Website is on the condition that you agree to this agreement. Please pay special attention to the following sections: (1) disclaimer of warranties (section 17); (2) limit on liability and exclusion of damages (sections 18 and 19); (3) place for resolving disputes (section 22.2); (4) mandatory mediation and arbitration (sections 23.3 and 23.4); (5) class action waiver (section 23.8); and (6) limitation on time to file disputes (section 23.9). By accessing the Website, including purchasing a subscription, you agree to this agreement. If you do not want to agree to this agreement, you must not access the Website.
Section 230(d) Notice: In accordance with 47 U.S.C. § 230(d), you are notified that parental control protections (including computer hardware, software, or filtering services) are commercially available that may help in limiting access to material that is harmful to minors. You may find information about providers of these protections on the Internet by searching “parental control protection” or similar terms. If minors have access to your computer, please restrain their access to sexually explicit material by using any of the following products, which the Company provides for informational purposes only and does not endorse: CYBERsitter™ | Net Nanny® | CyberPatrol | ASACP.
No Minors. The Website contains adult oriented content and is not intended for minors. Only adults (1) who are at least 18-years old and (2) who have reached the age of majority where they live may access the Website. The Company forbids all persons who do not meet these age requirements from accessing the Website.
No Child Pornography. The Company prohibits pornographic content involving minors. The Company only allows visual media of consenting adults for consenting adults on the Website. If you see any visual media, real or simulated, depicting minors engaged in sexual activity within the Website, please promptly report this to the Company at [email protected] . Please include with your report all appropriate evidence, including the date and time of identification. The Company will promptly investigate all reports and take appropriate action. The Company fully cooperates with any law-enforcement agency investigating child pornography.
1.1. The Website provides access to premium third-party social media accounts and other content of participating performers in the adult entertainment industry. By accessing the Website, you may see graphic depictions, nudity, adult language, and descriptions of explicit sexual activity, including heterosexual, bisexual, homosexual, and transsexual situations of a sexual nature.
1.2. This agreement applies to all users of the Website. By accessing any part of the Website, you agree to this agreement. If you do not want to agree to this agreement, you must leave the Website.
1.3. The Company may change this agreement on one or more occasions by updating this webpage. The top of the agreement will tell you when the Company last updated it. Changes will take effect on the “last updated” date stated on the top of this webpage. Changes will not operate retroactively. The Company will try to notify you when it changes this agreement if it can do so in a reasonable manner. But you should frequently check this webpage to make sure that you are operating under the most current version of the agreement. The Company will consider your continued use of the Website after it posts the changes as your acceptance of the changes even if you do not read them. If you do not agree to the changes, your sole remedy is to stop accessing the Website.
1.4. If you have any questions about this agreement or any questions or comments about the Website, please email the Company at [email protected].
2.1. Only adults (1) who are at least 18-years old and (2) who have reached the age of majority where they live may access the Website. If you do not meet these age requirements, you must not access the Website and must leave now.
class="tab"2.2. By accessing the Website, you state that the following facts are accurate:
a. You are at least 18-years old, have reached the age of majority where you live, and you have the legal capacity to enter into this agreement;
b. All information you provide to the Company is accurate, and you will promptly update this information when necessary to make sure that it remains accurate;
c. You own the credit card you pay with and authorize the Company (or its authorized payment processing agent) to charge your credit card for the subscription you purchase; and
d. By logging on, you will have released and discharged the providers, owners, and creators of the Website from all liability that may arise.
3.1. License Grant The Company hereby grants you a nonexclusive, nontransferable, nonsublicensable license to access the Website and its content for your personal and noncommercial use in accordance with this agreement. By “access”, the Company means visit the Website, use its services, and view or download its content. “Content” includes the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, and other materials found on the Website.
3.2. License Restrictions
3.2.1. The license granted in section 3.1 does not include any of the following:
a. resale or commercial use of the Website;
b. distribution, public performance, or public display of the Website or the content;
c. changing or otherwise making any derivative uses of the Website and the content, or any part of the Website or the content, unless the Company specifically authorizes change or derivative use in a separate written agreement with you;
d. use of any data mining, robots, or similar gathering or extraction methods;
e. downloading (other than webpage caching) any part of the Website or the content except as permitted on the Website; or
f. any other use of the Website or the content other than for its intended purpose.
3.3. Your license to access the Website does not transfer ownership of or title to a copy of any content that you view or print, and the Company only authorizes you to use your copy in accordance with this agreement. If you download or print a copy of the content for your personal use, you must retain all copyright and other proprietary notices embedded in the content. Any use of the Website or the content except as authorized by this agreement will terminate the license granted here. Unauthorized use of the Website or the content may also violate intellectual property laws or other laws. Unless stated here, nothing in this agreement should be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. The Company may revoke this license at any time.
4.1. Ownership of Website
4.1.1. Unless otherwise indicated in this agreement or on the Website, the Company owns or has a license to use:
a. the Website, including its past, present, and future versions;
b. all webpages found within the Website;
c. all the material and information on the Website;
d. all graphics, text, images, audio, videos, designs, compilation, advertising copy, articles, user interfaces, artwork, any computer applications, any copyrightable material (including source and object code), and all other materials, including the design, structure, “look and feel,” and arrangement of the content contained on the Website; and
e. all trade names, trademarks, service marks, logos, domain names, and other distinctive brand elements, regardless of registration, contained on the Website.
4.1.2. Intellectual property laws, including copyright, patent, service mark, trademark, trade dress, trade secret, international treatises, and various other intellectual property and unfair competition laws protect the Website and its content. In using the Website or the content, you will comply with all governing intellectual property laws, and any specific notices contained on the Website.
4.2.1. The Company’s name, logos, domain names, and the term TeddysGirls.net, and Teddysgirls.tv, are the Company’s trademarks, and must not be copied, imitated, or used, in whole or in part, without the Company’s advance written permission. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and trade dress of the Company, and must not be copied, imitated, or use, in whole or in part, without the Company’s advance written permission.
4.2.2. Other names of actual companies, products, or services mentioned on the Website may be the trademarks of their respective owners and reference to them does not suggest sponsorship, endorsement, or association by or with the Company, or that those owners endorse or have any affiliation with the Website. Nothing contained on the Website should be construed as granting, by implication or otherwise, any license or right to use any marks displayed on the Website, meta tags, or any other “hidden text” using marks that belong to the Company and its licensors, without advanced written permission from the Company or the third party who may own the mark.
5.1. In General
The Website is a social media platform that lets you subscribe to a performer’s profile or third-party social media account to view the performer’s otherwise restricted photos, videos, and posts as well as to interact with the performer in exchange for a one-time or recurring fee. Each performer sets their own pricing. It is your responsibility to check the subscription price before subscribing. Pricing excludes any taxes or currency transmission charges, which are extra costs charged to you.
5.2. Payment; Recurring Billing
The Company accepts payment via the payment method indicated before the purchase. You must have a valid accepted form of payment on file in order to purchase a subscription. You must abide by any relevant terms of service or other legal agreement, whether with the Company or a third party, that governs your use of a given payment processing method. Prices for any subscription may change at any time, and the Company does not provide price protection or refunds in the event of a price reduction or promotional offering. You will pay for any subscription that you order. The Company will charge your credit card or other form of payment for the price listed for the relevant subscription, along with any additional amounts relating to applicable taxes, bank fees, and currency fluctuations. If you purchase any automatically renewing subscriptions, you hereby authorize the Company or its payment processor to charge the payment method on file on the first day of each billing period for the relevant subscription, and if the payment method on file becomes invalid due to an expired credit card or other similar reason and the Company is unable to charge you on the next billing period, the Company may immediately revoke your access to any subscription you have purchased until you update your payment method. If you fail to update your payment method within a reasonable amount of time, the Company may cancel your subscription.
If the Company is required to collect or pay any taxes in connection with your purchase of a subscription, those taxes will be charged to you at the time of each purchase transaction. Additionally, if required by law, you are responsible for reporting and paying certain taxes in connection with your purchase and use of a subscription. These taxes may include duties, customs fees, or other taxes (other than income tax), along with any related penalties or interest, as applicable to your purchase or country of purchase.
Payments are nonrefundable and there are no refunds or credits for partially used periods. But the Company may approve a refund in the form of a credit on request if exceptional circumstances exist, including if a performer fails to add you to their private third-party social media account within 48 hours after your purchase a subscription to that performer’s private third-party social media account (unless the failure to add was caused by your failure to provide accurate information). The amount and form of a refund, and the decision to provide it, is at the Company’s sole discretion. The provision of a refund in one instance does not entitle you to a refund in the future for similar instances; nor does it obligate the Company to provide refunds in the future, under any circumstance.
5.5. Subscription Cancellations
If you purchase a subscription that automatically renews, you may cancel the subscription any time before the end of the current billing period and the cancellation will take effect on the next billing period. You retain access to the subscription from the time you cancel until the start of the next billing period, and will not receive a refund or credit for any remaining days in your current billing period. To cancel a subscription, please contact the payment processor that you paid through.
5.6. Billing Disputes
If you believe that the Company has charged you in error, you must notify the Company in writing no later than 30 days after you receive the billing statement in which the error first appeared. If you fail to notify the Company in writing of a dispute within this 30-day period, you waive any disputed charges. You must submit any billing disputes by email to [email protected] and include a detailed statement describing the nature and amount of the disputed charges. The Company will correct any mistakes in a bill and add or credit them against your future payments.
6.1. You are solely responsible for all acts and omissions that occur because of your use of the Website. You must comply with all laws that apply to your access to the Website and its content, including laws relating to the Internet, data, email, privacy, or the sending of technical data exported from the country where you live.
6.2. You must not engage in any of the following prohibited activities:
6.2.1. recording or rebroadcasting any content;
6.2.2. copying, distributing, or disclosing any part of the Website in any medium, including by any automated or non-automated “scraping;”
6.2.3. using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Website;
6.2.4. transmitting spam, chain letters, or other unsolicited email;
6.2.5. attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Website;
6.2.6. taking any action that imposes, or may impose at the Company’s sole discretion an unreasonable or disproportionately large load on the Website infrastructure;
6.2.7. uploading invalid data, viruses, worms, or other software agents through the Website;
6.2.8. collecting or harvesting any personally identifiable information, including account names, from the Website;
6.2.9. using the Website for any commercial solicitation purposes;
6.2.10. impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
6.2.11. interfering with the proper working of the Website;
6.2.12. accessing any content on the Website through any technology or means other than those provided or authorized by the Website; or
6.2.13. bypassing the security measures that the Company may use to prevent or restrict access to the Website, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Website or the content located on it.
7.1. The Company does not own, operate, or control third-party social media platforms. Your use of any third-party social media platform in connection with your subscription is subject to that third-party social media platform’s terms, policies, and guidelines. If your third-party social media platform account is suspended or terminated as a result of your violation of that third-party social media platform’s terms, policies, or guidelines, you will not receive a refund or credit for any lost access due to a third-party social media platform’s suspension or termination of your account with that platform.
7.2. If you threaten, harass, bully, or stalk any performer through the Website or any third-party social media platform, that performer may terminate your access to their private third-party social media account. If a performer terminates your access to their private third-party social media account because you engaged in this type of behavior or any other behavior that violates that third-party social media platform’s terms, policies, or guidelines, you will not receive a refund or any credit.
The Website may contain links to third-party websites or resources. You acknowledge that the Company is not responsible or liable for (1) the availability or accuracy of those websites or resources; or (2) the content, products, or services on or available from those websites or resources. Links to third-party websites or resources do not imply any endorsement by the Company of those websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
Through the Website, you will have the ability to access or use content provided by third parties. The Company cannot guarantee that third-party content will be free of material you may find objectionable or otherwise. The Company will not be liable to you for your access or use of any third-party content.
10.1. The Company makes the information presented on or through the Website available for general information purposes only. The Company is not making any warranty about the accuracy or usefulness of this information. Any reliance you place on this information is strictly at your own risk. The Company will not be liable for any reliance placed on these materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.
10.2. The Website includes content provided by third parties, including materials provided by other users, third-party licensors, syndicators, or aggregators. All statements or opinions expressed in these materials, and all responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person providing these materials. These materials do not reflect the opinion of the Company. The Company will not be liable to you or any other person for the content or accuracy of any materials provided by any third parties.
11.1. The Company operates the Website as a neutral host, and the Company does not regularly monitor, regulate, or police the use of the Website by any of its participants. The participation in the Website by a visitor, user, performer, or other third party (collectively, the “participants”) does not constitute an endorsement by the Company of that participant. The Company is not responsible for the acts, omissions, agreements, promises, content, products, or other services, comments, opinions, advice, statements, offers, or information of any participant.
11.2. Participants are independent parties and the Company does not, and will not, have any responsibility or liability for the acts, omissions, agreements, promises, comments, opinions, advice, statements, or offers of any participant.
13.1. The Company respects the intellectual property rights of others and expect users of the Website to do the same. The Company will respond to notices of alleged copyright infringement that comply with law and are properly provided to the Company. If you believe that your content has been copied in a way that constitutes copyright infringement, please provide the Company’s copyright agent with the following information in accordance with the Digital Millennium Copyright Act (DMCA):
13.1.1. a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
13.1.2. identification of the copyrighted work claimed to have been infringed;
13.1.3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material;
13.1.4. your contact information, including your address, telephone number, and an email address;
13.1.5. a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
13.1.6. a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
13.2. It is the Company’s policy in appropriate circumstances to disable or terminate the user accounts of repeat infringers in accordance with the Company’s “Repeat Infringer” Policy. A copy of the Company’s “Repeat Infringer” Policy is available on request.
14.1. Termination on Notice
Either party may terminate this agreement at any time by notifying the other party.
14.2. Termination by the Company
The Company may suspend, disable, or cancel your access to the Website (or any part of it) if it determines that you have breached this agreement or that your conduct would tend to damage the Company’s reputation and goodwill. If the Company terminates your access for any of these reasons, you must not access the Website. The Company may block your email address and IP address to prevent further access.
14.3. Effect of Termination
On termination of your access to or ability to use the Website, your right to use or access the Website will immediately end. Termination of your access to the Website will not relieve you of any obligations arising or accruing before termination or limit any liability that you otherwise may have to the Company or any third party. You are solely responsible for making sure that any recurring billing is cancelled. To cancel recurring billing, please contact the payment processor you signed up through.
14.4. Survival of Provisions This agreement’s provisions that by their nature should survive termination will survive termination, including ownership provisions, indemnification, disclaimers, exclusions, and limitations of liability.
15.1. Although the Company may update the content on the Website on one or more occasions, the content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and the Company is not required to update that material. If you believe you have found errors or omissions on the Website, you can bring them to the Company’s attention by email at [email protected].
15.2. While the Company will try to make sure that the Website is always available, it does not guarantee continuous, uninterrupted, or secure access to the Website. Many factors or circumstances outside of the Company’s control may interfere with or adversely affect its operation of the Website.
The Company is located in the United States of America. The Company is not making any statement that the Website or any of its content is accessible or appropriate outside of the United States of America. Access to the Website might not be legal by certain persons or in certain countries. If you access the Website from outside the United States of America, you do so on your own initiative and are responsible for complying with all local laws.
17.1. You acknowledge that the Company cannot and does not state that files available for downloading from the Internet or the Website will be free from loss, corruption, attack, viruses or other destructive code, interference, hacking, or other security intrusions. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for antivirus protection and accuracy of data input and output, and for keeping a means external to the Website for any reconstruction of any lost data. The Company will not be liable for any loss or damage caused by a distributed denial-of-service (DDoS) attack, viruses, or other technologically harmful material that might infect your computer equipment, computer programs, data, or other proprietary material due to your use of the Website or any services or items obtained through the Website or to your downloading of any material posted on the Website, or on any website linked to the Website.
17.2. The Company is not making any warranty about the availability or functionality of any third-party social media platform. You acknowledge that the Company is not affiliated with any third-party social media platform and that third-party social media platforms do not sponsor or endorse the Company or the Website. You further acknowledge that the Company has no control over third-party social media platforms and that third-party social media platforms may suspend or terminate a performer account that you subscribe to for violation of that third-party social media platform’s terms, policies, or guidelines at any time.
17.3. You acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionably, and you hereby waive any legal or equitable rights or remedies you have or may have against the Company with respect to this content.
17.4. The Company will use reasonable efforts to protect information submitted by you in connection with the Website, but you acknowledge that your submission of this information is at your sole risk, and the Company will not be liable to you for any loss relating to that information.
17.5. Your use of the Website, its content, and any services or items obtained through the Website is at your own risk. The Company provides the Website, its content, and any services or items obtained through the Website “as is,” “with all faults,” and “as available,” without making any warranty, either express or implied. The Company is not making any warranty (1) that the Website, its content, or any services or items obtained through the Website will be accurate, reliable, error-free, or uninterrupted; (2) that defects will be corrected; (3) that the Website or the server that makes it available are free of viruses or other harmful components; or (4) that the Website or any services or items obtained through the Website will otherwise meet your needs or expectations.
17.6. The Company is not making any warranty, whether express, implied, statutory, or otherwise, including any warranty of merchantability, title, noninfringement, privacy, security, and fitness for particular purpose. No advice or information, whether oral or written, obtained from the Company, the Website, or elsewhere will create any warranty not expressly stated in this agreement.
18.1. The Company, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors will not be liable to you for any of the following:
18.1.1. A third-party social media platform’s suspension or termination of your account or the private third-party social media account of any performer you purchase access to;
18.1.2. A performer’s failure to add you to the performer’s private third-party social media account;
18.1.3. Errors, mistakes, or inaccuracies of content;
18.1.4. Personal injury or property damage resulting from your access to and use of the Website or its content;
18.1.5. Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
18.1.6. Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to your submissions, transmissions, or data;
18.1.7. Interruption or cessation of transmission to or from the Website;
18.1.8. Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Website by any person or that might infect your computer or affect your access to or use of the Website, your other services, hardware, or software;
18.1.9. Incompatibility between the Website and your other services, hardware, or software;
18.1.10. Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Website; or
18.1.11. Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Website.
18.2. You hereby release the Company, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors from all liability arising out of submissions or the conduct of other users or third parties, including disputes between you and one or more other users or third parties.
19.1. Unless caused by gross negligence or intentional misconduct, the Company, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors will not be liable to you for any direct, indirect, special (including so-called consequential damages), statutory, punitive, or exemplary damages arising out of or relating to your access or your inability to access the Website or the content.This exclusion applies regardless of theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
19.2. The Company, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors also will not be liable to you for any damages for (1) personal injury, (2) pain and suffering, (3) emotional distress, (4) loss of revenue, (5) loss of profits, (6) loss of business or anticipated savings, (7) loss of use, (8) loss of goodwill, (9) loss of data, (10) loss of privacy, or (11) computer failure related to your access of or your inability to access the Website or the content. This exclusion applies regardless of theory of liability and even if you told the Company about the possibility of these damages or the Company knew or should have known about the possibility of these damages.
19.3. If you are dissatisfied with the Website or have any other complaint, your exclusive remedy is to stop using the Website and cancel your subscriptions. The maximum liability of the Company and its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, and directors to you for any claim will not exceed the greater of $100 or the amount you have paid to the Company for the applicable purchase out of which liability arose even if the remedy fails of its essential purpose.
The disclaimers, exclusions, and limits stated in sections 17, 18, and 19 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive you of any mandatory protections provided to you by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the exclusion of some damages, or other matters, one or more of the disclaimers, exclusions, or limits will not apply to you.
21.1. In General
You will pay the Company, its subsidiaries, affiliates, licensors, service providers, content providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) for any loss of the Indemnified Parties’ that is caused by any of the following:
21.1.1. your use of or conduct on the Website;
21.1.2. your use of or conduct on any third-party social media platform;
21.1.3. your breach of this agreement;
21.1.4. your actual or alleged violation of rights of any person, including intellectual property and privacy rights;
21.1.5. your actual or alleged violation of any law;
21.1.6. your actual or alleged tortious conduct; or
21.1.7. your actual or alleged criminal conduct.
21.2. But you are not required to pay if the loss was caused by the Indemnified Parties’ intentional misconduct.
21.3.1. “Loss” means an amount that the Indemnified Parties are legally responsible for or pay in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
21.3.2. A loss is “caused by” an event if the loss would not have happened without the event, even if the event is not a proximate cause of the loss.
21.4. Indemnified Parties’ Duty to Notify You
If the Indemnified Party has your contact information, the Indemnified Party will notify you before the 30th day after the Indemnified Party knows or should reasonably have known of a claim for a loss that you might be compelled to pay. But the Indemnified Party’s failure to give you timely notice does not end your obligation, except if that failure prejudices your ability to defend or mitigate losses.
21.5. Legal Defense of a Claim
The Indemnified Party has control over defending a claim for a loss (including settling it), unless the Indemnified Party directs you to control the defense. If the Indemnified Party directs you to control the defense, you will not settle any litigation without the Indemnified Party’s written consent if the settlement (1) imposes a penalty or limitation on the Indemnified Party, (2) admits the Indemnified Party’s fault, or (3) does not fully release the Indemnified Party from liability. You and the Indemnified Party will cooperate with each other in good faith on a claim.
21.6. No Exclusivity
The Indemnified Parties’ rights under this section 21 do not affect other rights they might have.
22.1. The laws of the state of New York—without giving effect to any conflicts of law principles—govern all matters arising out of or relating to the Website or this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.” This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
22.2. Except for disputes subject to arbitration, all disputes arising out of (or relating to) the Website or these terms will be subject to the exclusive jurisdiction and venue of the courts in the state of New York. Each party hereby submits to the personal jurisdiction of the courts in the state of New York to resolve all disputes not subject to arbitration. Each party hereby waives any right to seek another forum or venue because of improper or inconvenient forum.
22.3. For purposes of this section 22, the Website will be deemed solely based in New York, New York and will be deemed a passive website that does not give rise to personal jurisdiction over the Company, either specific or general, in any other jurisdiction.
23.1. In General
Each party will allow the other a reasonable opportunity to comply before it claims that the other has not met the duties under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of or relating to the Website or this agreement.
23.2. Litigation Election
Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this dispute resolution process.
If the parties cannot settle a dispute arising out of or relating to the Website or this agreement through negotiation after 30 days, either party may, by notice to the other party and the International Institute of Conflict Prevention & Resolution (“CPR”), demand mediation under the Mediation Procedure of CPR. Mediation will take place in New York, New York. The language of the mediation will be English. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to the Site or this agreement by binding arbitration administered by the CPR in accordance with the Rules of Arbitration of the International Institute of Conflict Prevention & Resolution. The arbitrator, and not any court or agency, will have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of this agreement, including any claim that any part of this agreement is void or voidable.
Unless the parties agree otherwise, the arbitration will take place in New York, New York.
Each party will be responsible for paying any filing, administrative, and arbitrator fees associated with the arbitration.
The award rendered by the arbitrator must include costs of arbitration, reasonable legal fees, and reasonable costs for expert and other witnesses, and any judgement on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
23.5. Right to Injunctive Relief
Nothing in this section 23 will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Website.
23.6. Recovery of Expenses
23.6.1. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.
23.6.2. For purposes of section 23.6(a), “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
23.7. Jury Trial Waiver
Both parties hereby waive the right to a trial by jury for any dispute arising out of or relating to the Website or this agreement. Either party may enforce this waiver up to and including the first day of trial.
23.8. Class Action Waiver
All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless the Company agrees otherwise, the arbitrator will not consolidate more than one person’s claims. Both parties acknowledge that each party is waiving the right to participate in a class action.
23.9. Limitation on Time to Bring Claims
A party will not file a claim arising out of or relating to the Website or this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
24.1. Entire Agreement
This agreement constitutes the entire agreement between you and the Company about your access to the Website. It supersedes all earlier or contemporaneous agreements between you and the Company about access to the Website. A printed version of this agreement will be admissible in any proceedings arising out of (or relating to) this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form. Any additional terms on the Website will govern the items to which they pertain.
24.2. Copy of this Agreement
You may—and the Company recommends that you—print this agreement on your printer or save them to your computer. If you have trouble printing a copy, please email the Company at [email protected] and the Company will email you a copy.
The Company may change this agreement on one or more occasions. The Company will try to post changes on the Website at least 15 days before they become effective. Changes will become effective on the “last updated” date stated at the top of this page. Changes will not apply to continuing disputes or to disputes arising out of (or relating to) events happening before the posted changes. While the Company will try to notify you when the Company changes this agreement, the Company does not assume an obligation to do so, and it is your responsibility to frequently check this page to review the most current agreement. By continuing to use the Website after the Company posts changes to this agreement, you agree to the revised agreement. If you do not agree to the revised agreement, your exclusive remedy is to stop accessing the Website. If you need more information about the changes or have any other questions or comments about the changes, please contact the Company at [email protected].
24.4. Assignment and Delegation
The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s advanced written consent. Any attempted assignment of rights or delegation of performance in breach of this section 24.4 is void.
24.5. No Waivers
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
24.6.1. that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
24.6.2. that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
24.6.3. that if an unenforceable provision is modified or disregarded in accordance with this section 24.6, then the rest of the agreement will remain in effect as written; and
24.6.7. that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
24.7.1. Sending Notice to the CompanyYou may send notice to the Company by email at [email protected] unless a specific email address is set out for giving notice. The Company will consider an email notice received by the Company only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Website. Please check the Website for the most current information for sending notice to the Company.
24.7.2. Sending Notice to You—Electronic Notice
You consent to receiving any notice from the Company in electronic form either (1) by email to the last known email address the Company has for you or (2) by posting the notice on a place on the Website chosen for this purpose. The Company will consider notices sent to you by email received when its email service shows transmission to your email address. You state that any email address you gave the Company for contacting you is a current and valid email address for receiving notice, and that your computer has hardware and software configured to send and receive email through the Internet and to print any email you receive.
24.8. Force Majeure
The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond its reasonable control delays or continues to delay its performance, including:
24.8.1. Acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
24.8.2. War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
24.8.3. Fiber cuts;
24.8.4. Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
24.8.5. Failure of the telecommunications or information services infrastructure; and
24.8.6. Hacking, SPAM, or any failure of a computer, server, network, or software.
24.9. No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
24.10. Relationship of the Parties
This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
24.11. Successors and Assigns
This agreement inures to the benefit of, and are binding on, the parties and their respective successors and assigns. This section 24.11 does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 24.4 addresses these matters.
24.12. Permission to Email You
24.13. Electronic Communications Not Private
The Company does not provide facilities for sending or receiving confidential electronic communications. You should consider all messages sent to the Company or from the Company as open communications readily accessible to the public. You should not use the Website to send or receive messages you only intend the sender and named recipients to read. Users or operators of the Website may read all messages you send to the Website regardless of whether they are intended recipients.
24.14. Electronic Signatures
Any affirmation, assent, or agreement you send through the Website will bind you. You acknowledge that when you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your finger, mouse, keystroke, or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
24.15. Consumer Rights Information—California Residents Only
This section 24.15 applies only to California residents. In compliance with Section 1789 of the California Civil Code, please note the following: Burrshark Works Inc., Starkville, MS. 39759 +1 (xxx) xxx-xxxx . The Company charges for purchasing subscriptions to performer profiles and their private third-party social media accounts. You may contact the Company at [email protected] to resolve any disputes or to receive further information about the Website.
24.16. Complaints—California Residents
You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 North Street, #501, Sacramento, California 95814, or by telephone at +1 (916) 445-1254.
The Company encourage you to provide feedback about the Website. But the Company will not treat as confidential any suggestion or idea provided by you, and nothing in this agreement will restrict its right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
24.18. English language
The Company drafted this agreement in the English language. No translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in English.
24.19. Your Comments and Concerns
You should direct all feedback, comments, requests for technical support, and other communications relating to the Website to [email protected].
In this agreement, the following usages apply:
26.20.1. Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
24.20.2. References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
24.20.3. References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
24.20.4. References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
24.20.5. “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
24.20.6. “Including” means “including, but not limited to.”