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Ashley Madison (es) - Términos y Condiciones 13-abr-2018 | 99,98%
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0 Ashley Madison Ashley Madison
1 Praecellens Limited ("we," "us" or "Praecellens") operates the AshleyMadison domain internationally (including Ashley Madison Mobile) (collectively, our or this "Site" or “Ashley Madison”), on which we provide an interactive way for like minded users to communicate, entertain themselves and to determine whether they wish to chat with each other (our Site and such services, collectively, our or this "Service"). AFFAIRS CANNOT AND DO NOT TAKE PLACE ON THIS SITE. ASHLEY MADISON IS SIMPLY A SOCIAL NETWORK FOR LIKE-MINDED ADULTS TO INTERACT. WE DO NOT ENDORSE OR ENCOURAGE ANY UNLAWFUL BEHAVIOUR IN ANY JURISDICTION IN WHICH THIS SOCIAL NETWORK IS MADE AVAILABLE. The Site is a Platform for communication. THE TERMS AND CONDITIONS SET FORTH BELOW FORM AN AGREEMENT (THE "TERMS") THAT GOVERNS YOUR USE OF THE SERVICE. BY USING OR ACCESSING THE SERVICE, YOU ("YOU" AND "YOUR") AGREE TO BE BOUND BY (1) THE TERMS AND (2) ASHLEY MADISON'S PRIVACY POLICY, AVAILABLE AT [ https://www.ashleymadison.com/app/public/privacy.p ] ("PRIVACY POLICY") . PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS SITE INCLUDING THE SECTIONS RELATING TO TERMINATION, ARBITRATION AND CLASS ACTION WAIVER. IF YOU DO NOT AGREE WITH THE TERMS OR PRIVACY POLICY, DO NOT ACCESS OR OTHERWISE USE THE SITE OR ANY INFORMATION CONTAINED HEREIN. WE RESERVE THE RIGHT, AT OUR DISCRETION, TO MODIFY THESE TERMS AT ANY TIME. ANY UPDATED VERSION SUPERSEDES AND REPLACES ANY PRIOR VERSIONS UPON POSTING AND THE PRIOR VERSION IS OF NO FURTHER FORCE AND EFFECT UNLESS WE SPECIFICALLY STATE OTHERWISE. WE WILL INDICATE THE LAST UPDATE DATE AT THE END OF THESE TERMS. YOU AGREE TO NOTE THAT LAST UPDATE DATE OF THE REVISION YOU READ AND AGREE TO PERIODICALLY CHECK THESE TERMS FOR CHANGES. IF THE LAST UPDATE DATE HAS BEEN CHANGED, THEN YOU WILL KNOW WE HAVE MADE CHANGES TO THESE TERMS AND THAT YOU MUST REVIEW THE TERMS TO DETERMINE HOW YOUR RIGHTS AND RESPONSIBILITIES UNDER THE TERMS HAVE CHANGED. YOUR CONTINUED USE OF THIS SITE FOLLOWING THE POSTING OF CHANGES TO THESE TERMS WILL MEAN YOU ACCEPT THOSE CHANGES. YOU ALSO WILL BE REQUIRED TO AFFIRMATIVELY AGREE TO THE TERMS AND ANY MATERIAL MODIFICATIONS TO THE TERMS.
2 YOU CANNOT USE THIS SITE OR OUR SERVICE IF YOU ARE NOT AT LEAST 18 YEARS OF AGE AND THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THESE TERMS. YOU ALSO MAY NOT USE THIS SITE OR OUR SERVICE IF YOU HAVE EVER BEEN CONVICTED OF A SEXUAL OFFENSE, ARE REQUIRED TO REGISTER AS A SEX OFFENDER WITH ANY GOVERNMENTAL ENTITY OR AGENCY OR ARE CURRENTLY UNDER INDICTMENT FOR SUCH AN OFFENSE OF A SEXUAL NATURE.
3 This legal agreement is made between you and us. By accessing the Service, you accept these Terms and agree to be bound by the terms, conditions and notices contained or referenced herein whether or not you become a paid subscriber. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT USE OR ACCESS THE SITE OR THE SERVICE.
4 Information and services that are provided on this Site and Service in a language other than English are only provided as a convenience to you when available. All Services to be provided, all obligations of Ashley Madison and all communication between the parties with respect to this Agreement will be done in the English language. Web pages which are translated from English to other languages may contain errors / omissions. If for any reason the translated text is incorrect, or misleading, the English text shall be deemed as the official version.
5 1. USER CONDUCT
6 In your use of our Service, you agree to act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to:
7 a. violate any applicable law or regulation,
8 b. infringe the rights of any third party, including, without limitation, intellectual property, privacy, publicity or contractual rights,
9 c. use the information available through our Service for any unauthorized or unlawful purpose,
10 d. interfere with or damage our Service, including, without limitation, through the use of viruses, cancel bots, trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, including methods that in any way reproduces or circumvents the navigational structure or presentation of the Service or its contents,
11 e. use our Service to transmit, distribute, post or submit any information concerning any other person or entity, including, without limitation, photographs of others, personal contact information or credit, debit, calling card or account numbers,
12 f. use our Service to obtain the personal contact information of another user without their prior consent;
13 g. use our Service in connection with the distribution of unsolicited commercial email ("Spam") or advertisements,
14 h. "stalk" or harass any other user of our Service,
15 i. use the Service if you have ever been convicted of a sexual offense or currently have such charges pending against you;
16 j. use the Service for any illegal purposes, including, without limitation, prostitution and/or solicitation;
17 k. collect or store any information about any other user other than in the course of the permitted use of our Service,
18 l. use our Service for any commercial purpose whatsoever, including, without limitation, advertising or marketing any services or products,
19 m. impersonate any person or entity,
20 n. remove any copyright, trademark or other proprietary right notices contained in the Service,
21 o. infringe on the intellectual property rights of the Service or any third parties in any manner,
22 p. modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or our Site or any software used on or for the Service,
23 q. post, upload or transmit false, misleading or illegal information or content to the Service,
24 r. make false statements, attempt or use personal, financial or other information that you are not authorized to use,
25 s. upload, post, email, transmit or otherwise make available any content that you are not legally permitted to make available to the Service under any law or any contractual or fiduciary relationship (including, without limitation, inside information and information subject to obligations of confidentiality),
26 t. disrupt the flow of dialogue, cause a screen to “scroll” faster than other users or members of the Service are able to read to type, or otherwise engage in behavior that negatively affects the ability of other users or members to engage in communications or other interactions on our Service,
27 u. collect or store personal data about other users or members without their consent, or upload, post, email or transmit any other user’s or member’s private information or data,
28 v. provide hyperlinks, URL links, graphic links or other direct connection to our Site or the Service for profit or gain, or
29 w. assist any third party in doing any of the foregoing.
30 2. YOUR INTERACTIONS WITH OTHER USERS OF THE SERVICE
31 A. Your Responsibilities
32 You are solely responsible for your interactions with other users of our Service, including the content of the materials you post on the Service and in your messages to other users of the Service. You agree to take reasonable precautions in all interactions with other users of the Service, particularly if you decide to meet offline or in person. In addition, YOU AGREE TO REVIEW ASHLEY MADISON'S DATING SAFETY TIPS [ https://www.ashleymadison.com/app/public/faq.p?#713 ] PRIOR TO USING THE SERVICE. You should not provide your personal or financial information (for example, your credit card or bank account information) to other users of our Site. That information may be misused. There is no substitute for acting with caution when communicating with any stranger that would like to meet you.
33 B. Our Limitations
34 You agree that we will not be responsible for any damage or harm resulting from your use of the Service or your interactions with other users of our Service. While we do make concerted efforts to screen users, you understand and acknowledge that we do not pre-approve any of our users or members nor do we in any way inquire into the backgrounds of the users of the Service or attempt to verify their statements. We make no representations or warranties as to the conduct of our users or their compatibility with any current or future users.WE DO NOT PERFORM CRIMINAL OR ANY OTHER FORM OF BACKGROUND CHECKS ON OUR USERS OR MEMBERS. It is your responsibility to investigate the background, financial status, criminal background, character and all other aspects that might affect whether or not you want to interact with a user or member on our Service. We reserve the right, but have no obligation, to monitor all interactions between you and other users of our Service and to take any action in good faith to restrict access to or the availability of any material that we or another user of our Service may consider to be illegal, obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable. Email and chat messages sent between you and other users of the Service that are not readily accessible to the general public may be reviewed by us for compliance with these Terms, but will be treated by us as private to the extent required by applicable law. In no event shall we be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, punitive, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service, including without limitation, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other users of the Service or persons you meet through the Service. We are not responsible for, and cannot control, the use by others of any information which you provide to them and you should use caution in selecting the personal information you provide to others through the Service. We cannot and do not assume any responsibility for the content of messages sent by other users of the Service. You agree that we are not responsible for the accuracy of information communicated to you on the Service. You release us from any and all liability in connection with the Service and the contents of any communications you may receive from other users. We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates these Terms, including without limitation, removing the offending communication from the Service, terminating the violator's access to the Site and contacting and disclosing information to the relevant authorities and pursuant to legal process; however, you agree that we are under no obligation to do so.
35 C. User Disputes
36 YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF OUR SITE AND OUR SERVICE. We reserve the right, but have no obligation, to monitor disputes between you and other users. You agree to release us, our parents, subsidiaries and affiliated entities and ours and their shareholders, officers, directors, employees and agents, successors and assigns from all claims, demands, damages, losses, liabilities of every kind, know and unknown, direct and contingent, disclosed and undisclosed, arising out of or in any way related to such disputes. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
37 3. MINORS
38 Our Service is intended for persons 18 years or older and who have otherwise attained the age of majority and legal consent in the jurisdiction of their residence ONLY. We will not knowingly permit anyone who does not meet these criteria to use our Service. By using our Site and/or using the Service, you represent and warrant that you are at least 18 years old and otherwise have the right, authority and capacity to accept these Terms and abide by all of the terms and conditions set forth herein. You also represent and warrant that you will not allow any minor access to this Site or our Service, including taking all precautions and implementing all parental control protections on your computer or other electronic device used to access this Site and our Service to prevent any minor from gaining access to this Site and our Service. Further, you hereby commit to inform us immediately should you become aware of a minor using the Service.
39 You agree that we shall not be responsible or liable for any misrepresentations regarding a user’s or member’s age or for the unauthorized use of this Site or our Service by a minor.
40 WE DO NOT TOLERATE ANY UPLOADING OF PICTURES OR OTHER DEPICTIONS OF ANYONE UNDER THE AGE OF 18.
41 4. THE ASHLEY MADISON SERVICE – REGISTRATION AND TERMINATION
42 A. Categories of Services
43 Users of the Service may become "Guests" or "Full Members" of the Service. Guests are allowed access to a minimal level of the Service's features and are not charged by us for the use of the features they can access. Full Members are provided with access to additional features of the Service that are not available to Guests. Full Members are not charged by us for the features that are free to Guests; however, some features available to Guests may not be accessible when a Full Member has run out of credits. Certain additional features of the Service made available to Full Members are also free of charge. Certain other features of the Service are "paid features", for which a Full Member is charged.
44 B. Registering to Use our Service, Fees and Payments
45 Guests of the Service are required to set up an "Profile" in order to access the Service. To activate certain additional features of the Service, Guests may choose one of our membership packages to purchase a membership and upgrade to Full Membership status. A member may pay via credit card, cash, check or any other method we may accept as payment of account, in accordance with our pricing policy for Full Memberships as posted on our website under the "Buy Credits" section. An explanation of our fee structure is available under the “credits” section of our Site. All funds are quoted in the currency in which they are displayed or, where no currency is displayed, all amounts are in United States dollars. In addition to paying the published price, you are responsible for paying all applicable taxes or client transaction fees in connection with your purchase. We reserve the right to change our pricing policy or the method or manner in which we charge for our Service at any time at our sole discretion without further notice. Once we have confirmed receipt of your payment, you will become a member and we will credit your account with the number of credits purchased. If we receive payment for an incorrect amount or non-specified currency payments, we reserve the right to credit your account with a pro-rated number of credits based on the funds received, converted to the specified currency at a reasonable market exchange rate at the time of processing. Accounts may not be transferred from one client of the Service to another client.
46 You understand and agree that it is a condition of your use of this Site and the Service and of your membership that all of the information you provide to us when you are signing up and providing your Profile is correct, current, accurate and complete. If you provide any misleading or false information to us, your right to use this Site is invalid and your membership is void.
47 C. Cancellation of Your Account for Non-Usage
48 If you have not logged into your account within the previous 90 days, we reserve the right to cancel your remaining credits. You agree that the time will lapse automatically on your account and will be automatically deducted from your account as follows. We reserve the right to cancel without refund any unused credits on or after 90 days from the date of purchase. You can confirm the expiry date of your account and any account balance at any time by clicking on "Manage Profile" or by using the Contact Form and providing us with your Ad Profile Number and account details. A Full Member whose account has lapsed or who has no remaining credits may not be able to access certain features until credits for additional time is purchased.
49 D. Automatic Renewals and Cancellation
50 We use an automatic re-bill “top up” feature to keep your account active. In the event that any action you take or features you use on the Service that require the expenditure of credits results in you having a "zero balance" or a negative balance of credits, WE WILL AUTOMATICALLY PURCHASE (WITHOUT FURTHER AUTHORIZATION FROM YOU ONCE YOU OPT IN) FOR YOU THE SAME MEMBERSHIP PACKAGE THAT YOU HAD PURCHASED PREVIOUSLY (OR, IF SUCH MEMBERSHIP PACKAGE IS NO LONGER AVAILABLE TO YOU, THE MEMBERSHIP PACKAGE THAT IS MOST CLOSELY PRICED TO THE MEMBERSHIP PACKAGE YOU MOST RECENTLY PURCHASED) USING THE SAME PAYMENT METHOD YOU PREVIOUSLY USED. YOU AGREE TO THIS AUTOMATICALLY RECURRING TOP UP PAYMENT FEATURE OF OUR SERVICE. TO TERMINATE YOUR AUTHORIZATION FOR US TO AUTOMATICALLY REPURCHASE A MEMBERSHIP PACKAGE FOR YOU OR TO CHANGE YOUR PAYMENT METHOD, GO TO https://www.ashleymadison.com/app/public/loginaction.p?redir=credithistory . You agree to pay or have paid all fees and charges incurred in connection with the Service (including any applicable taxes) at the rates in effect when the charges were incurred.
51 Your paid membership will include complimentary 30 day unlimited access to read and respond to unsolicited member initiated communications and/or communications you have initiated through your purchases of credits. After the period lapses, your complimentary access expires. AT THE END OF THE 30 DAY PROMOTIONAL PERIOD, AS INDICATED ON YOUR PURCHASE IF THE PAYMENT METHOD YOU HAVE SELECTED PERMITS, WE WILL AUTOMATICALLY PURCHASE FOR YOU AN ADDITIONAL 30 DAYS OF UNLIMITED ACCESS TO UNSOLICITED MEMBER INITIATED COMMUNICATIONS AND ALLOW YOU TO CONTINUE ONGOING COMMUNICATIONS WITH THOSE MEMBERS YOU HAVE ALREADY COMMUNICATED WITH. YOU MAY OPT OUT OF THIS FEATURE IN YOUR MEMBER PROFILE'S “CREDIT HISTORY”.
52 We may change the fees and charges in effect for using the Service, or add new fees or charges, by posting new fees and changes on the Site from time to time. You are also responsible for any fees or charges incurred to access the Service through an Internet access provider or other third party service, including, but not limited to telephone charges.
53 THE PURCHASE OF INITIAL AND RECURRING CREDITS IS NON-REFUNDABLE.
54 Once successfully posted, we may monitor your account for usage and compliance with the Terms. We reserve the right to terminate your membership for breach of these Terms or otherwise in our discretion. If your usage of the Service is terminated because of a breach of these Terms or if it is terminated for any reason, any unused credit balance you may have is immediately forfeited. No fees or charges are refundable under any circumstance.
55 E. Refund Policy
56 You agree that your all purchases are non-refundable.
57 F. Termination
58 You acknowledge and agree that we, in our sole discretion, may terminate your access to our Service for any reason, including, without limitation, your breach of these Terms. You understand and agree that we are not required, and may be prohibited, from disclosing to you the reason for termination of your access to our Service. You acknowledge and agree that any termination of your access to our Service may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete any of your accounts and all related information and files in such accounts and/or bar any further access to such files or our Service. Further, you acknowledge and agree that we will not be liable to you or any third party for any costs or damages of any kind for or resulting from any termination of your access to our Service. You will be entitled to a refund of unused credit or subscription fees paid upon termination of your access to our Service by us for any reason.
59 You may terminate your access to the Service at any time via our Site or by sending us written or email notice of termination. You will not be entitled to any refund of unused credits or subscription fees upon your termination of your access to our Service for any reason whatsoever.
60 G. Complete Profile Removal
61 You may also select the "Complete Profile Removal" option, which is offered separately of basic termination. This feature will remove any existence of the account on the Service, including all messages sent and received (regular, collect, priority), Winks, Gifts, all photos you have uploaded, any Site usage history and other personally identifiable information. By using the Service, you hereby acknowledge that Members' communications may no longer be accessible should that Member have selected the Complete Profile Removal. You understand and acknowledge that notwithstanding the above, we may retain some or all of the deleted information for up to 6 months following its removal from the Site for financial record-keeping purposes. In addition to all of the other limitations of liability contained in these terms and conditions of use, you acknowledge that you cannot make any claims in relation to or in respect of your account information or activities on the site after it has been completely deleted.
62 H. Credit Card Chargeback Policy
63 We protect our business and credit card processors, banks and other institutions providing related services to us from fraudulent credit card chargebacks. A credit card chargeback is when the holder of a credit card disputes a charge with a credit card processor, bank or other institution and the charge is charged back to the business. The chargeback is fraudulent if the credit card holder disputes a charge to a legitimate charge for services the holder has purchased. You understand and agree that in the event you attempt to create a fraudulent credit card chargeback, we will work with the relevant credit card processor, bank or other institution and law enforcement authorities to investigate the matter. Our assistance may include providing details about the profiles, card authentication and communications with or related to our Service or other users or members. Engaging in activities aimed at reversing a legitimate charge is illegal. You understand and acknowledge that you can be prosecuted for such activity and we reserve the right to reclaim any fees and costs we incur in responding to fraudulently filed chargebacks.
64 I. Privacy & Use of Information
65 Use of the Service is also governed by our Privacy Policy. You agree that by registering a Profile or using our Service you have agreed to our Privacy Statement. You acknowledge that although we strive to maintain the necessary safeguards to protect your personal data, we cannot ensure the security or privacy of information you provide through the Internet and your email messages. Our privacy policy is incorporated into the Terms by this reference. You agree to release us, our parent, subsidiaries and affiliated entities and ours and their shareholders, officers, directors, employees and agents, successors and assigns from all claims, demands, damages, losses, liabilities of every kind, know and unknown, direct and contingent, disclosed and undisclosed, arising out of or in any way related to the release or use of such information by third parties. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” You acknowledge and understand that due to the inherent uncertainty in the use of the internet and information systems, and the potential for unlawful attacks by third parties, we cannot guarantee that the use of our systems, websites, or applications will be completely safe or secure. We may process and store your personal information at a facility in Canada or any other country in which we maintain or use facilities or hosted services. Information may be subject to access by law enforcement or other governmental agencies pursuant to lawful orders or legal process. Any personal information you provide to us may be subject to all applicable laws.
66 J. Customer Service
67 Our customer service representatives are available to answer questions you may have about your Service and to enhance your experience using our Service and its features. You may not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately when communicating with our customer service representatives. If we determine, in our sole discretion, that your behavior towards any of our representatives is at any time inappropriate, we reserve the right to immediately terminate your access to our Site and your membership to our Service and you will not be entitled to any refund of unused credits or subscription fees.
68 K. Email Communications
69 You acknowledge and agree that we and other sites we operate (or our agents) may send you email (electronic) communications that include messages about the Service and your membership account with us and services offered by our other sites and third parties. We communicate with you as part of our Service and your membership. You agree and consent that any notice, agreements, and other communications we send to you electronically will satisfy any legal requirements, including, without limitation, that such communications be in writing. You may opt out of receiving these notifications from us. You further agree and acknowledge that from time to time we may send messages on your behalf to other members, in order to facilitate your introduction to a larger number of potential matches and to enhance your engagement on our social network. You further agree to receive these messages from potential matches, and acknowledge that we may include your profile in messages sent to other members. If you prefer (i) not to have these messages sent on your behalf or (ii) not to receive such messages, you can opt out of feature in your personal settings.
70 5. Other Aspects of the Ashley Madison Service – For Your Entertainment
71 Our Site and our Service gives users the opportunity to explore and improve their abilities to interact with others in the Site. However, there is no guarantee you will find a date or a communication partner on our Site or using our Service. Our Site and our Service also is geared to provide you with amusement and entertainment. You agree that some of the features of our Site and our Service are intended to provide entertainment to our users.
72 Others Using the Site for Entertainment
73 You understand and agree that there are Guest users and Members on the Site that use and subscribe to our Service for purely entertainment purposes. Those users and subscribers are not seeking in person meetings with anyone they meet on the Service, but consider their communications with users and Members to be for their amusement.
74 You acknowledge and agree that any profiles of users and Members, as well as, communications from such persons may not be true, accurate or authentic and may be exaggerated or based on fantasy. You acknowledge and understand that you may be communicating with such persons and that we are not responsible for such communications.
75 6. USER CONTENT
76 A. By submitting any content (including, without limitation, your photograph and profile and other information) to our Site, you represent and warrant to us that the content, including your photograph, is posted by you and that you are the exclusive author of the content, including your photograph, and use of your content by us will not infringe or violate the intellectual property or other rights of any third party. You waive absolutely any and all moral rights to be identified as the author of the content, including your photograph and profile, and any similar rights in any jurisdiction in the world. By submitting any content (including, without limitation, your photograph and profile) to our Site, you automatically grant, and you represent and warrant that you have the right to grant, to us, and our licensees, parent, subsidiaries, affiliates and successors, an unlimited, perpetual, worldwide, non-exclusive, royalty-free irrevocable, transferable right and license to use, reproduce, display, broadcast, publish, quote, re-post, reproduce, bundle, distribute, create derivative works of, adapt, translate, transmit, arrange, sub-license, export, outsource, loan, lease, rent, share, assign and modify such content or incorporate into other works such content, and to grant and to authorize sub-licenses and other transfers of the foregoing. You specifically authorize us to use this license to reproduce and display the photographs you transmit to us, in digital form alone or in connection with other images and to adapt, modify or alter your photographs or otherwise create derivative works based upon your photographs. We are under no obligation to remove your profile, picture and other information from our Service even after you have terminated your membership unless you utilize the Complete Profile Removal option. You represent and warrant to us that you have the absolute right to grant the license and other rights set forth above. You agree that we may use your contact information to send or transmit to you, information and promotional materials about our Service, and information and promotional materials about our affiliates and third party sites.
77 B. You are solely responsible for any content that you submit, post or transmit via our Service. You agree not to post or submit any content that:
78 a. is libelous, defamatory or slanderous,
79 b. contains pornographic, sexually explicit or vulgar content,
80 c. may denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, including by promoting racism, bigotry, hatred or physical harm of any kind against any group,
81 d. exploits images or the likeness of individuals under 18 years of age including in a sexual or violent manner, or solicits personal information from anyone under the age of 18, or harms minors in any way,
82 e. encourages or otherwise depicts or glamorizes drug use (including alcohol and cigarettes) or any illegal acts,
83 f. makes use of offensive language or images or is otherwise patently offensive to the online community,
84 g. harasses or advocates harassment of another person,
85 h. involves the transmission of "junk mail", "chain letters" or unsolicited mass mailing or Spam,
86 i. promotes an illegal or unauthorized copy of another person's copyrighted work,
87 j. characterizes violence as acceptable, glamorous or desirable,
88 k. contains any illegal material or any material that infringes or violates another party's rights (including, without limitation, intellectual property rights and rights of privacy and publicity),
89 l. constitutes an illegal act (including, without limitation, prostitution and/or solicitation) or provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses,
90 m. solicits passwords or personal identifying information for commercial or unlawful purposes from other users,
91 n. provides or promotes inaccurate, misleading or false information,
92 o. engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes, or
93 p. contains any identifiable personal contact information (other than for purposes of registration for the Service).
94 If any information that you provide to us subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change.
95 C. The foregoing is a partial list of the kind of content that is illegal or prohibited on our Site. We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this Section 6 or any other provision of these Terms, including, without limitation, removing the offending communication from the Service, terminating the violator's access to the Site and contacting and disclosing information to the relevant authorities.
96 D. We have no obligation to post any content that you or anyone else submits. While we do not and cannot review every message or other material posted or sent by users of the Service, and are not responsible for any content of these messages or materials, we reserve the right, but are not obligated, to monitor, delete, move, remove, block, refuse to post or transmit, or edit messages or materials, including, without limitation, advertisements, profiles, public postings, emails, and messages, that we, in our sole discretion, deem to violate these Terms or any applicable content guidelines, or to be otherwise unacceptable. You understand and agree that you shall remain solely responsible for the content of profiles, public postings, messages and other materials you may upload to the Service or users of the Service. You also understand and agree that we cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service.
97 7. NON-COMMERCIAL USE
98 You understand and agree that our Site and the Service is for personal use only and may not be used in connection with any commercial purposes. Organizations, companies, and/or businesses may not use the Service or our Site for any purpose. Illegal and/or unauthorized uses of our Site, including prostitution and/solicitation, financial fraud, collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to our Site may be investigated, and appropriate legal action will be taken, including, without limitation, civil, criminal, and injunctive redress. You understand and agree that use of our Site is with our permission, which may be revoked at any time, for any reason, in our sole discretion.
99 8. THIRD PARTY CONTENT, LINKS AND PAGES
100 In your use of our Service, you may access content from third parties ("Third Party Content"), either via our Service or through links to third party web sites. We do not control Third Party Content and make no representations or warranties about it. We do not endorse or accept any responsibility for any Third Party Content. You acknowledge and agree that by using our Service, you may be exposed to Third Party Content that is false, offensive, indecent, inaccurate, incomplete or otherwise objectionable. Third Party Content is subject to the privacy and security policies of those third parties, which may differ substantially from our privacy policies. You acknowledge and agree that Third Party Content is the sole responsibility of the authors or sites displaying such Third Party Content and under no circumstances will we be liable in any way for any Third Party Content, including, without limitation, any inaccuracies, errors or omissions in any Third Party Content or any losses, liabilities or damages of any kind arising out of or incurred as a result of the use of any Third Party Content posted, stored or transmitted via our Service. You agree that you must evaluate, and bear all risks associated with Third Party Content, including, without limitation, profiles of other users of our Service.
101 9. PROPRIETARY RIGHTS
102 A. Content is Protected by Law
103 You acknowledge and agree that all content and materials available on our Site are protected by either our rights, or the rights of our licensors or other third parties, of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You may not use any of the marks, logos, domains and trademarks that you may find on our Site, unless you have our written permission. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to sell, license, loan, rent, modify, distribute, copy, reproduce, transmit, publicly display, broadcast, publicly perform, publish, adapt, edit or create derivative works from materials or content available on our Site. Notwithstanding the above, you may use the content and materials on our Site in the course of your normal, personal, non-commercial use of our Service in accordance with the Terms. If you download or print a copy of any content for your personal use, you must retain all copyright and other proprietary notices contained on such content.
104 B. Use of Content
105 You agree not to systematically retrieve data or other content or any materials from our Site to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots" or otherwise. You agree not to use any of our trademarks or logos as metatags on other web sites. You agree not to display any of our Site in a frame (or any of our content via in-line links) without our express written permission, which may be requested by contacting us at [email protected] You may, however, establish ordinary links to the homepage of our Site without our written permission.
106 C. Content – AS-IS
107 All of the content on our Site is provided “AS IS.” All content is the responsibility of the person that originated such content. You understand and agree that under no circumstances will we be liable for any losses, liabilities or damages incurred as a result of your use of any content on our Site.
108 10. USERNAME AND PASSWORD
109 You will select a username and password when completing the registration process. You agree that you will not choose a name that may represent you as someone else or that may otherwise violate some third party’s rights. We may refuse to grant you a Username/Nickname that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion. Your username and password are not transferable and may not be assigned. You are solely and fully responsible for maintaining the confidentiality of your username and password, and are solely and fully responsible for all activities that occur under your username and password. You agree to: (a) immediately notify us of any unauthorized use of your username and password or any other breach of security and (b) ensure that you log off from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this Section 10.
110 11. DISCONTINUANCE OF SERVICE
111 We reserve the right at any time to modify or discontinue, temporarily or permanently, any portion of our Service with or without prior notice. You acknowledge and agree that we will not be liable to you or to any third party for any modification or discontinuance of our Service.
112 12. BLOCKING OF IP ADDRESSES
113 In order to protect the integrity of the Service, we reserve the right at any time, in our sole discretion, to block users from certain IP addresses from accessing our Site.
114 13. REPRESENTATIONS AND WARRANTIES
115 You hereby represent and warrant to us that: (a) you have the full power and authority to enter into and perform under these Terms; (b) your use of our Service will not infringe or violate the copyright, trademark, right of publicity or any other legal right of any third party; (c) you will comply with all applicable laws and regulations in using our Service and in engaging in all other activities arising from, relating to or connected with these Terms, including, without limitation, contacting other users of our Service; (d) you have never been convicted of a sexual offense and that you have no such charges currently pending against you; and (e) you own or otherwise have all rights necessary to license the content you submit and that the posting and use of your content by us will not infringe or violate the rights of any third party.
116 14. DISCLAIMER OF WARRANTIES
117 YOU AGREE THAT:
118 A. IF YOU USE OUR SERVICE, YOU DO SO AT YOUR OWN AND SOLE RISK. OUR SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
119 B. WE DO NOT WARRANT THAT (A) OUR SERVICE WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN ON OUR SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OR RELIABILITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS; (E) ANY INFORMATION YOU PROVIDE OR WE COLLECT WILL NOT BE DISCLOSED TO THIRD PARTIES; (F) ANY PROFILE ON OUR SITE IS ACCURATE, UP TO DATE OR AUTHENTIC; (G) ANY MATERIAL OR FILES THAT YOU CAN DOWNLOAD FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY HAVE DAMAGING; (H) THIRD PARTIES WILL NOT USE OF YOUR CONFIDENTIAL INFORMATION IN AN UNAUTHORIZED MANNER; OR (I) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL/CHAT OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH OUR SITE AND/OR IN CONNECTION WITH THE SERVICE. UNDER NO CIRCUMSTANCES WILL WE OR ANY OF OUR AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM ANYONE'S USE OF OUR SITE OR THE SERVICE, ANY CONTENT POSTED ON OUR SITE OR TRANSMITTED TO USERS, ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES OR ANY CONDUCT OR INTERACTIONS BETWEEN USERS OF OUR SITE, WHETHER ONLINE OR OFFLINE.
120 C. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU IN CONNECTION WITH SUCH ACTIONS. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OUR SITE OR IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY USERS OF OUR SITE OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF OUR SITE OR THE SERVICE. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS.
121 D. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM US OR THROUGH OR FROM OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
122 15. LIMITS ON LIABILITY
123 A. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT, INDIRECT, INCIDENTAL, PUNATIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE; (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT; (D) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE; (E) ACTIONS OR INACTIONS OF OTHER USERS OF OUR SITE OR OUR SERVICE OR ANY OTHER THIRD PARTIES FOR ANY REASON; OR (F) ANY OTHER MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS.
124 B. WE WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATION SYSTEM BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
125 C. IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS EXCEED THE SUM OF FIVE THOUSAND ($5,000) DOLLARS.
126 D. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS OF SECTIONS 14 AND 15 MAY NOT APPLY TO YOU. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THESE TERMS.
127 E. YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS OF WARRANTIES THESE LIMITATIONS OF LIABILITY ARE AN AGREED UPON ALLOCATION OF RISK BETWEEN YOU AND US. YOU ACKNOWLEDGE AND AGREE THAT IF YOU DID NOT AGREE TO THESE LIMITATIONS OF LIABILITY WE WOULD NOT PROVIDE OUR SITE OR THE SERVICE OR THE MATERIALS OR CONTENT INCLUDED TO YOU. YOU ACKNOWLEDGE AND AGREE THAT SUCH PROVISIONS ARE REASONABLE AND FAIR.
128 IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
129 16. INDEMNITY
130 You agree to defend, indemnify and hold us, and our subsidiaries, parents, affiliates, and each of our and their directors, officers, managers, members, partners, agents, other representatives, employees and customers (each an “Indemnified Party” and collectively, the “Indemnified Parties”), harmless from any claim, demand, action, damage, loss, cost or expense, including without limitation, attorneys' fees and costs, investigation costs and settlement expenses, incurred in connection with any investigation, claim, action, suit or proceeding of any kind brought against any Indemnified Party arising out of your use of our Service, any alleged or actual infringement of the intellectual property rights of any party, any injury or damage to property or person, any act by you in connection with any user or member of this Service or any other third party, any business practices in which you engage or are alleged to engage, or alleging facts or circumstances that could constitute a breach by you of any provision of these Terms and/or any of the representations and warranties set forth above. If you are obligated to indemnify an Indemnified Party, we and the Indemnified Party will have the right, in our sole discretion, to choose our attorneys, experts and other advisers, conduct our own inquiry into the matter, control any investigation, action or proceeding and determine if and how we wish to settle it. You agree that you will advance costs and expenses to any Indemnified Party. You agree to cooperate with the Indemnified Parties in connection with any investigation, claim, action or proceeding covered by this Section 16.
131 17. COPYRIGHT POLICY
132 The Service contains information, which is proprietary to us, our partners and our users. We assert full copyright protection in the Service. Information posted by us, our partners or users of the Service may be protected whether or not it is identified as proprietary to us or to them. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Without limiting the foregoing, if you believe that your work has been copied and posted on our Site in a way that constitutes copyright infringement, please provide the following information to [email protected]
133 (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
134 (b) a description of the copyrighted work that you claim has been infringed, including the URL (web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
135 (c) a description of where the material that you claim is infringing is located on the site, including the URL;
136 (d) your address, telephone number, and email address;
137 (e) 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
138 (f) a statement by you, made under penalty of perjury or other criminal sanction, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
139 Please also note that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
140 18. LINKS
141 The Service may provide, or third parties may provide, links, including, without limitation, banner ads and hyperlinks, to other World Wide Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You acknowledge and agree that we are not responsible for any use of your personal information by such third parties. Such third parties have their own privacy policies and procedures. You should check those privacy policies and procedures before you provide any information to them. 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 the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.
142 19. ARBITRATION AND CLASS ACTION WAIVER
143 Any Dispute arising out of or relating to these Terms and Conditions may be resolved through binding arbitration in accordance with the terms of this Arbitration Provision at either your or Praecellens’ election, unless otherwise prohibited by law. The term "Dispute" means any dispute, claim or controversy regarding any aspect of your relationship with Praecellens that has accrued or may hereafter accrue, whether based in contract, statute, regulation, tort (including without limitation claims arising from or pertaining to misrepresentation or negligence), and includes the validity and enforceability of this Arbitration Provision (with the exception of the enforceability of section (b) of the Restrictions clause provided below). Arbitration means that you will have a fair hearing before a neutral arbitrator instead of in a court by a judge or jury.
144 Arbitration Procedures: If the parties are unable to resolve differences or disputes of any nature that may arise in relation to this Agreement after good faith negotiations, all such disputes shall be referred to arbitration by a single Arbitrator in accordance with the provisions of the Arbitration Law of Cyprus, Cap 4. The Arbitrator will be proposed by the Arbitration Service of the Cyprus Chamber of Commerce and Industry and must be approved by the parties. The place of the arbitration will be Nicosia, Cyprus, and the language of the proceeding shall be English. The arbitrator’s decision shall be final and binding but the arbitrator’s judgment may be entered in any court having jurisdiction and thereupon execution or other legal process may issue thereon. The costs of the arbitration shall be paid as determined by the arbitrator.
145 If an award granted by the arbitrator exceeds $5,000, either party can appeal that award to a three-arbitrator panel administered by the same organization by a written notice of appeal filed within thirty (30) days from the date of entry of the arbitration award. The members of the three-arbitration panel will be selected according to the rules of the arbitration organization. The decision of the three-arbitrator panel shall be final and binding, except for any appellate right that exists under the Arbitration Law of Cyprus, Cap 4.
146 In the event of a conflict between this Arbitration Provision and the rules of the arbitration organization chosen, this Arbitration Provision will govern. If the arbitration organization will not enforce this Arbitration Provision, it cannot serve as the arbitration organization to resolve your dispute. If the arbitration organization above is not available or permitted to arbitrate the Dispute for any reason, the parties shall agree on a substitute arbitration organization. If the parties are unable to agree, they shall mutually petition a court of appropriate jurisdiction to appoint a substitute arbitration organization that will enforce this Arbitration Provision as written.
147 Restrictions:
148 a. UNLESS OTHERWISE REQUIRED BY LAW, YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.
149 b. ALL PARTIES TO THE ARBITRATION MUST BE INDIVIDUALLY NAMED. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION OR CONSOLIDATED BASIS OR ON BASES INVOLVING DISPUTES BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OR OTHER SIMILARLY SITUATED PERSONS UNLESS THAT STATUTE UNDER WHICH YOU ARE SUING PROVIDES OTHERWISE.
150 c. ALL PARTIES WAIVE ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING FROM OR OUT OF ANY DISPUTE WITH PRAECELLENS UNLESS THE STATUTE UNDER WHICH THEY ARE SUING PROVIDES OTHERWISE.
151 Severability: If any clause within this Arbitration Provision other than the class action waiver clause is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, the Arbitration Provision will be unenforceable, and the dispute will be decided by a court.
152 Exclusions from Arbitration: You and Praecellens agree that any claim filed by you or by Praecellens that is not aggregated with the claim of any other persons and whose amount in controversy is properly within the jurisdiction of a court which is limited to adjudicating small claims shall not be subject to arbitration. Notwithsatnding the foregoing, Praecellens reserves the right to pursue the protection of intellectual property rights and confidential information through injunctive or other equitable relief through the courts.
153 Continuation: This Arbitration Provision will survive the termination of your Service with Praecellens.Class and Consolidated Claims Waiver
154 It is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Disputes subject to arbitration under this Agreement or any Dispute between the parties. The parties also waive any right to assert consolidated claims with respect to any Disputes subject to arbitration under this Agreement or any Dispute between the parties.
155 Limit of Liability
156 Liability for both parties is limited $5,000 in damages. Parties waive and the Arbitrator shall not be empowered to grant indirect, consequential, special, punitive or exemplary damages and/or damages or relief in excess of those permitted by this Agreement unless the statute under which they are suing provides otherwise. An arbitration award rendered by the arbitrator may be entered in any court having jurisdiction for the purposes of enforcement.
157
158 20. ASSIGNMENT
159 You do not have the right to assign these Terms or this Agreement or any of your rights to our Service to anyone. Praecellens has the right to assign any or all of its rights and obligations under this Agreement or to the Service to any third party. Provided such rights and obligations are assumed by such third party, Praecellens shall be relieved of any and all liability under this Agreement and in such event you hereby agree to release Praecellens of all liability, claims, charges, damages and causes of action.
160
161 21. NOTICES
162 Unless provided otherwise in these Terms, all notices shall to you shall be sent by email to you at the email address you provided to us at the time you registered or through a later notice of a change of address. We may also send you notice by overnight courier or certified mail, postage prepaid. Email notices shall be deemed received 24 hours after the email is sent, unless the sender is notified the email address is invalid or has been returned for some other reason. All other notices shall be deemed received when delivered.
163 22. MISCELLANEOUS
164 You agree that: (i) the Service shall be deemed solely based in the Republic of Cyprus; (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Ashley Madison, either specific or general, in jurisdictions other than the Republic of Cyprus; and (iii) the Terms, and your relationship with Ashley Madison under the Terms shall be governed by the internal substantive laws of Cyprus, without respect to its conflict of laws principles. These Terms shall be interpreted in accordance with the laws of Cyprus without reference to conflict of law principles. These Terms, together with our privacy policy contain the entire understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding their subject matter. These Terms shall be binding on the parties, their successors and permitted assigns. No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect. The headings used in these Terms are for convenience only and shall not be deemed to define or limit the content of any provision of these Terms. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
165 * * * * * * * *
166 If you have any questions or concerns about these Terms, our Privacy Policy, the practices of Ashley Madison, or your dealings with us, you may contact a representative of our company by using the Contact Form or by regular mail: 9 Karpensiou 2021 Nicosia, Cyprus.
167 © Praecellens Limited
168 All rights reserved
169 July 2016 – Terms and Conditions
170 Last Updated: April 12, 2018
171 These terms and conditions (these "Terms") are a legal contract between “you” and ruby Life Inc., for users located in Canada and the US, and Praecellens Limited for users located in any other jurisdiction (as applicable, "we," "us" or "Ashley Madison"). We operate AshleyMadison.com (including Ashley Madison Mobile) and the Ashley Madison mobile applications (collectively, the "Platform"), on which we provide an interactive way for users to communicate, explore their fantasies, and entertain themselves (the "Service"). Any personal information we collect in connection with your access to the Platform or use of the Service is governed by our Privacy Policy (https://www.ashleymadison.com/app/public/privacy.p) . You agree that by registering a profile on our Platform or using our Service you have agreed to our Privacy Policy which is incorporated into these Terms by this reference and you should read it carefully.
172 Below is a high level summary of these Terms. Please read these Terms carefully in their entirety before using the Platform and do not solely rely on the high level summary provided below. If you do not agree with any portion of these Terms, do not access or otherwise use the Platform or the Service.
173 User Conduct: By accessing the Platform and using the Service, you must act appropriately. YOU CANNOT USE THE PLATFORM OR OUR SERVICE IF YOU ARE NOT AT LEAST 18 YEARS OF AGE AND/OR THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THESE TERMS. YOU ALSO MAY NOT USE THE PLATFORM OR OUR SERVICE IF YOU HAVE EVER BEEN CONVICTED OF A SEXUAL OFFENSE, ARE REQUIRED TO REGISTER AS A SEX OFFENDER WITH ANY GOVERNMENTAL ENTITY OR AGENCY OR ARE CURRENTLY CHARGED WITH AN OFFENSE OF A SEXUAL NATURE. WE DO NOT TOLERATE ANY UPLOADING OF PICTURES OR OTHER DEPICTIONS OF ANYONE UNDER THE AGE OF 18. Please note that if you are using one of our mobile applications, additional terms may apply depending on the type of device you are using. For more information, please click here .
174 The Service: You may access the Platform and use the Service as a “guest” or a “full member”. Guests do not pay for their access to the Platform; however, they are only able to access certain features of the Service (for example, guests cannot communicate with other users). Full members are able to access additional features of the Service that are not available to guests (such as communicating with other users; ranking at the top of one’s inbox, etc.). You may become a “full member” by purchasing a subscription or credit package. Additional features, e.g. Member Initiated Contact (“MIC”) and/or Priority Man, may be offered along with credits or as part of a subscription package. Unless prohibited by applicable law, all purchases are non-refundable. For more information about becoming a full member, MIC and/or Priority Man, please click here .
175 Deletion/Deactivation: You may delete or deactivate your account at any time. For more information, click here .
176 Legal Stuff: These Terms set out the legal terms and conditions that govern our relationship with you and your access to the Platform and use of the Service. Put simply, except to the extent required by law, we don’t make any promises to you about the Platform or the Service and we will not be liable to you for any damages you incur in connection with your access to the Platform or use of the Service except as otherwise expressly stated in these Terms. In addition, to the extent permitted by law, you are fully liable for any damage we incur which is attributable to you. For more information on the terms and conditions that govern our relationship with you and your access to Platform and use of the Service, please click here .
177 Dispute Resolution: TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE TERMS REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. IF YOU ARE A RESIDENT OF THE UNITED STATES OF AMERICA, THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS. PLEASE NOTE THAT, DEPENDING ON YOUR COUNTRY OF RESIDENCE, UNDER CERTAIN CIRCUMSTANCES YOU MAY BE ABLE TO BRING A DISPUTE BEFORE THE APPROPRIATE AUTHORITIES OR COURTS IN THE COUNTRY IN WHICH YOU RESIDE. FOR MORE INFORMATION ON DISPUTE RESOLUTION, CLICK HERE .
178 Contact: If you have any questions or concerns about these Terms or our Privacy Policy you may contact a representative of our company by using the Contact Form (https://www.ashleymadison.com/app/public/contact.p) or by regular mail: PO Box 67027 Toronto, ON M4P 1E4.
179 MODIFICATIONS
180 WE MAY MODIFY ANY PORTION OF THESE TERMS AT ANY TIME PROVIDED:
181 WE GIVE YOU A MINIMUM OF THIRTY (30) DAYS WRITTEN NOTICE OF SUCH MODIFICATION BEFORE IT BECOMES EFFECTIVE; AND/OR
182 TO THE EXTENT THE APPLICABLE LAWS OF YOUR JURISDICTION REQUIRE EXPRESS AGREEMENT TO THE APPLICABLE MODIFICATION, WE HAVE OBTAINED YOUR EXPRESS CONSENT.
183 THE NOTICE CONTEMPLATED IN (a) ABOVE WILL SET OUT HOW YOU CAN ACCEPT OR REJECT THE APPLICABLE CHANGE AS REQUIRED BY THE APPLICABLE LAWS IN YOUR JURISDICTION.
184 We reserve the right to modify our prices at any time. In the event we change the price for ongoing Services which you have previously agreed to pay (for example, credit top-ups or monthly subscriptions), we will notify you of such changes as contemplated in this section. If you do not agree with the price change, we will no longer automatically top up your account or renew your subscription provided you following the instructions provided in such notice in accordance with the terms thereon (if any).
185 Back to the top of these Terms.
186 1.- USER CONDUCT
187 ASHLEY MADISON IS SIMPLY A SOCIAL NETWORK FOR ADULTS TO INTERACT. WE DO NOT ENDORSE OR ENCOURAGE ANY UNLAWFUL BEHAVIOUR IN ANY JURISDICTION IN WHICH THIS SOCIAL NETWORK IS MADE AVAILABLE. YOU ARE RESPONSIBLE FOR YOUR OWN COMPLIANCE WITH ALL LAWS THAT MAY APPLY TO YOU.
188 A. Minors
189 Our Service is ONLY intended for persons 18 years or older and who have otherwise attained the age of majority and legal consent in the jurisdiction of their residence. We will not knowingly permit anyone who does not meet these criteria to use our Service. By using our Platform and/or using the Service, you represent and warrant that you are at least 18 years old and otherwise have the right, authority and capacity to accept these Terms and abide by all of these Terms and conditions set forth herein. You also represent and warrant that you will not allow any minor access to the Platform or our Service, including taking all precautions and implementing all parental control protections on your computer or other electronic device used to access the Platform and our Service to prevent any minor from gaining access to the Platform and our Service. Further, you hereby commit to inform us immediately should you become aware of a minor using the Service.
190 Whilst we require all our users to be at least 18 years old, we are not responsible or liable for any misrepresentations regarding a user’s or member’s age or for the unauthorized use of the Platform or our Service by a minor.
191 B. Code of Conduct
192 In your use of our Service, you agree to act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to:
193 violate any applicable law or regulation,
194 infringe the rights of any third party, including, without limitation, intellectual property, privacy, publicity or contractual rights,
195 use the information available through our Service for any unauthorized or unlawful purpose,
196 interfere with or damage our Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, including methods that in any way reproduces or circumvents the navigational structure or presentation of the Service or its contents,
197 use our Service to transmit, distribute, post or submit any information concerning any other person or entity, including, without limitation, photographs of others, personal contact information or credit, debit, calling card or account numbers,
198 use our Service to obtain the personal contact information of another user without his/her prior consent;
199 use our Service in connection with the distribution of unsolicited commercial email ("Spam") or advertisements,
200 "stalk" or harass any other user of our Service,
201 use the Service if you have ever been convicted of a sexual offense or currently have such charges pending against you;
202 use the Service for any illegal purposes, including, without limitation, prostitution and/or solicitation;
203 collect or store any information about any other user other than in the course of the permitted use of our Service,
204 use our Service for any commercial purpose whatsoever, including, without limitation, advertising or marketing any services or products,
205 impersonate any person or entity,
206 remove any copyright, trademark or other proprietary right notices contained in the Service,
207 infringe on the intellectual property rights of the Service or any third parties in any manner,
208 modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or our Platform or any software used on or for the Service,
209 post, upload or transmit false, misleading or illegal information or content to the Service,
210 make false statements, attempt or use personal, financial or other information that you are not authorized to use,
211 upload, post, email, transmit or otherwise make available any content that you are not legally permitted to make available to the Service under any law or any contractual or fiduciary relationship (including, without limitation, inside information and information subject to obligations of confidentiality),
212 disrupt the flow of dialogue, cause a screen to “scroll” faster than other users or members of the Service are able to read to type, or otherwise engage in behavior that negatively affects the ability of other users or members to engage in communications or other interactions on our Service,
213 collect or store personal data about other users or members without their consent, or upload, post, email or transmit any other user’s or member’s private information or data,
214 provide hyperlinks, URL links, graphic links or other direct connection to our Platform or the Service for profit or gain, or
215 assist any third party in doing any of the foregoing.
216 C. User Content
217 By submitting any content (including, without limitation, your photograph and profile and other information) (your “Content”) to our Platform, you represent and warrant to us that the Content is posted by you and that you are the exclusive author of the Content and use of your Content by us will not infringe or violate the intellectual property or other rights of any third party. To the extent permitted by applicable law, you waive any and all moral rights to be identified as the author of the Content and any similar rights in any jurisdiction in the world. By submitting any Content to our Platform, you automatically grant, and you represent and warrant that you have the right to grant, to us, and our licensees, parent, subsidiaries, affiliates and successors, an unlimited, perpetual, worldwide, non-exclusive, royalty-free irrevocable, transferable right and license to use, reproduce, display, broadcast, publish, quote, create derivative works of, translate, sub-license, export, share, assign and modify such Content or incorporate into other works such Content, and to grant and to authorize sub-licenses and other transfers of the foregoing. You specifically authorize us to use this license to reproduce and display the photographs you transmit to us, in digital form alone or in connection with other images and to adapt, modify or alter your photographs or otherwise create derivative works based upon your photographs. We are under no obligation to remove your profile, picture and other information from our Service even after you have terminated your membership unless you utilize the option or we are otherwise required by applicable law. You represent and warrant to us that you have the absolute right to grant the license and other rights set forth above.
218 You are solely responsible for any content that you submit, post or transmit via our Service. You agree not to post or submit any content that:
219 is libelous, defamatory or slanderous,
220 contains pornographic, sexually explicit or vulgar content,
221 may denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, including by promoting racism, bigotry, hatred or physical harm of any kind against any group,
222 exploits images or the likeness of individuals under 18 years of age including in a sexual or violent manner, or solicits personal information from anyone under the age of 18, or harms minors in any way,
223 encourages or otherwise depicts or glamorizes drug use (including alcohol and cigarettes) or any illegal acts,
224 makes use of offensive language or images or is otherwise patently offensive to the online community,
225 harasses or advocates harassment of another person,
226 involves the transmission of "junk mail", "chain letters" or unsolicited mass mailing or Spam,
227 promotes an illegal or unauthorized copy of another person's copyrighted work,
228 characterizes violence as acceptable, glamorous or desirable,
229 contains any illegal material or any material that infringes or violates another party's rights (including, without limitation, intellectual property rights and rights of privacy and publicity),
230 constitutes an illegal act (including, without limitation, prostitution and/or solicitation) or provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses,
231 solicits passwords or personal identifying information for commercial or unlawful purposes from other users,
232 provides or promotes inaccurate, misleading or false information, or
233 engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
234 If any information that you provide to us subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. The foregoing is a partial list of the kind of content that is illegal or prohibited on our Platform. We reserve the right to investigate and take appropriate legal action in our reasonable discretion against anyone who violates this or any other provision of these Terms, including, without limitation, removing the offending communication from the Service, terminating the violator's access to the Platform and contacting and disclosing information to the relevant authorities.
235 We have no obligation to post any content that you or anyone else submits. While we do not and cannot review every message or other material posted or sent by users of the Service, and are not responsible for any content of these messages or materials, we reserve the right, but are not obligated, to monitor, delete, move, remove, block, refuse to post or transmit, or edit messages or materials, including, without limitation, advertisements, profiles, public postings, emails, and messages, that we, in our discretion (acting reasonably), deem to violate these Terms or any applicable content guidelines, or to be otherwise unacceptable. You remain solely responsible for the content of profiles, public postings, messages and other materials you may upload to the Service or users of the Service. We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service.
236 D. Representations and Warranties
237 You: (a) must not use our Service unless you have the full power and authority to enter into and perform these Terms; (b) will not use our Service to infringe or violate the copyright, trademark, right of publicity or any other legal right of any third party; (c) will comply with all applicable laws and regulations in using our Service and in engaging in all other activities arising from, relating to or connected with these Terms, including, without limitation, contacting other users of our Service; (d) must not use our Service if you have ever been convicted of an offence of a sexual nature or if you have any such charges currently pending against you; and (e) you must own or otherwise have all rights necessary to license the content you submit and that promise to us that the posting and use of your content by us will not infringe or violate the rights of any third party. To the fullest extent permitted by applicable law, we are not responsible to you for any damages you may suffer because of your breach of this clause.
238 E. Your Responsibilities
239 You are solely responsible for your interactions with other users of our Service, including the content of the materials you post on the Service and in your messages to other users of the Service. You must take reasonable precautions in all interactions with other users of the Service, particularly if you decide to meet offline or in person. In addition, WE STRONGLY RECOMMEND THAT YOU REVIEW ASHLEY MADISON'S SECURITY AND PRIVACY TIPS, POSTED AT https://blog.ashleymadison.com/security-privacy PRIOR TO USING THE SERVICE. You should not provide your personal or financial information (for example, your credit card or bank account information) to other users of our Platform. That information may be misused. There is no substitute for acting with caution when communicating with any stranger that would like to meet you.
240 F. User Disputes
241 YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF OUR PLATFORM AND OUR SERVICE. We reserve the right, but have no obligation, to monitor disputes between you and other users.
242 If you are a resident of the United States of America, you hereby agree to release us (and our subsidiaries and affiliated entities and ours (and their) shareholders, officers, directors, employees and agents, successors and assigns) from all claims, demands, damages, losses, liabilities of every kind, arising out of or in any way related to such disputes. If you are a California resident, Section 3.E.f. below applies to you.
243 G. Mobile Applications
244 Ashley Madison makes available mobile apps (collectively, the “Mobile Application”) to access the Platform via mobile devices. To use the Mobile Application you must have a mobile device that is compatible with Ashley Madison mobile service. Ashley Madison does not warrant that the Mobile Application will be compatible with your mobile device. Ashley Madison hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that Ashley Madison may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are then currently using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Ashley Madison and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application. You should contact your mobile phone carrier if you want to find out what standard carrier charges may apply. Please note that you may be required to pay an additional fee for use of the Ashley Madison mobile service. However, we will not charge you any such fees without your agreement to incur such fees in accordance with the applicable laws of your jurisdiction.
245 For US residents, the Mobile Application and all other software that is provided to you through the Platform and the Service and related documentation are "Commercial Items", as that term is defined under United States of America laws at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States or America and Canada.
246 The following additional terms and conditions apply with respect to any Mobile Application that Ashley Madison provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
247 You acknowledge that these Terms are between you and Ashley Madison only, and not with Apple, Inc. (“Apple”).
248 Your use of Ashley Madison’s iOS App must comply with Apple’s then-current App Store Terms of Service which can be found at https://www.apple.com/legal/internet-services/itunes/us/terms.html
249 Ashley Madison, and not Apple, is solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
250 You agree that Ashley Madison, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
251 You agree that Ashley Madison, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
252 You represent and warrant that (i) you are not located in a country that is subject to a U.S. or Canadian Government embargo, or that has been designated by the U.S. Government or the Canadian Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government or Canadian Government list of prohibited or restricted parties.
253 You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
254 The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Ashley Madison’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
255 The following additional terms and conditions apply with respect to any Mobile Application that Ashley Madison provides to you designed for use on an Android-powered mobile device (an “Android App”):
256 You acknowledge that these Terms are between you and Ashley Madison only, and not with Google, Inc. (“Google”).
257 Your use of Ashley Madison’s Android App must comply with Google’s then-current Android Market Terms of Service which can be found at https://www.google.com/mobile/android/market-tos.html
258 Google is only a provider of the Android Market where you obtained the Android App. Ashley Madison, and not Google, is solely responsible for Ashley Madison’s Android App and the services and content available thereon. Google has no obligation or liability to you with respect to Ashley Madison’s Android App or these Terms.
259 You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Ashley Madison’s Android App.
260 H. Geo-Location Terms
261 The Service includes and makes use of certain functionality and services provided by third-parties that allow Ashley Madison to include maps, geocoding, places and other Content from Google, Inc. (“Google”) as part of the Service (the “Geo-Location Services”). Your use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth ( http://www.google.com/intl/en_us/help/terms_maps.html ) and by using the Geo-Location Services, you are agreeing to be bound by Google’s Terms of Use.
262 Back to the top of these Terms.
263 SECTION 2 - THE ASHLEY MADISON SERVICE
264 A. Categories of Services
265 Users of the Service may become "Guests" or "Full Members" of the Service. Guests are allowed access to a minimal level of the Service's features and are not charged by us for the use of the features they can access. Full Members are provided with access to additional features of the Service that are not available to Guests. Full access to the Service can be achieved by purchasing credits or subscribing to the Service through any of the available credit or subscription membership packages.
266 Credit Packages
267 You may become a Full Member by purchasing a credit package. Credits are allotments which are stored in your account for immediate or future use. Credits are good towards the purchase of features within the Service.
268 Please be advised that we add and change features on the Service from time to time and that the value (in credits) of such features may change at any time.
269 Subscription Packages
270 To the extent offered in your jurisdiction, you may also become a Full Member by purchasing one of our subscription packages. Additional terms and conditions apply to our subscription packages which can be accessed here
271 Please note that Full Members are not charged by us for the features that are free to Guests; however, some features available to Guests may not be accessible when a Full Member has run out of credits or ended their subscription. For example, if a Full Member runs out of credits or has ended their subscription, the Full Member will no longer be able to access their messages including messages the Full Member was able to access as a Guest.
272 B. Registering to Use our Service, Fees and Payments
273 Guests of the Service are required to set up a "Profile" in order to access the Service. To activate certain additional features of the Service, Guests may choose one of our membership/subscription packages and upgrade to Full Membership status. A member may pay via credit card, cash, check or any other method we may accept as payment. In addition to paying the published price, you are responsible for paying all applicable taxes or client transaction fees in connection with your purchase, which will be disclosed to you prior to completing your transaction. We reserve the right to change our pricing policy or the method or manner in which we charge for our Service but will comply with the notice requirements in the section titled “Modifications”. Your order of credits or a subscription package will be deemed to be accepted once we (i) receive confirmation of payment in full, either by gift card, cash or cheque, or through the payment processor of your credit card and (ii) depending on the nature of the order, when we activate the requested feature, deposit credits to your account or activate your subscription. Please note that if you subscribe to our Service through an Apple iTunes or another authorized platform, your order will be governed by the terms and privacy policy that govern such platform, including their order cancellation provisions.
274 If we receive cash or check payment for an incorrect amount or non-specified currency payments, we will notify you of such incorrect payment. If such incorrect payment is not rectified within thirty (30) days of providing such notice, we reserve the right to adjust or credit your account with a pro-rated number of credits based on the funds received, converted to the specified currency at a reasonable market exchange rate at the time of processing. Accounts may not be transferred from one client of the Service to another client.
275 You understand and agree that it is a condition of your use of the Platform and the Service and of your membership that all of the information you provide to us when you are signing up and providing your Profile is correct, current, accurate and complete. If you provide any misleading or false information to us, your right to use the Platform is invalid and your membership is terminated and void.
276 C. Cancellation of Your Account for Non-Usage.
277 If you have not logged into your account within the prior twelve (12) month period we reserve the right to cancel your account. If your account is canceled for non-activity, your account will be cancelled and all credits in your account will expire. You can confirm your account balance at any time by clicking on "Manage Profile" or by using the Contact Form and providing us with your account details. THE ABOVE CANCELLATION PROVISION DOES NOT APPLY TO DORMANT ACCOUNTS THAT HAVE AN ACTIVE SUBSCRIPTION ASSOCIATED WITH THEM.
278 D. Automatic Credit and Subscription Renewals and Cancellation
279 If you select the automatic credit renewal option when purchasing your credits, we will use an automatic credit “top up” feature to help you keep your account active. In the event that any action you take or features you use on the Platform result in you having a "zero balance" or a negative balance of credits, WE WILL AUTOMATICALLY PURCHASE (WITHOUT FURTHER AUTHORIZATION FROM YOU ONCE YOU OPT IN) FOR YOU THE SAME CREDIT PACKAGE THAT YOU HAD PURCHASED PREVIOUSLY USING THE SAME PAYMENT METHOD YOU PREVIOUSLY USED. TO OPT OUT OF THIS FEATURE GO TO THE “PROFILE OPTIONS” page www.ashleymadison.com/app/private/member/settings/profile.p when logged into your account.
280 Unless advised otherwise, all subscription packages are subject to automatic renewal for the same term as originally selected.
281 E. Member Initiated Contact (MIC) and Cancellation
282 If you become Full Member through the purchase or Credits, you may subscribe to the MIC feature on a month-to-month basis. MIC provides you unlimited access to read and respond to unsolicited member initiated communications and/or communications you have initiated.
283 If you have subscribed to MIC, your credit card will be charged for the initial thirty (30) days of MIC at the time of purchase. AT THE END OF THIS THIRTY (30) DAY PERIOD, AND EVERY THIRTY (30) DAYS THEREAFTER, WE WILL AUTOMATICALLY CHARGE YOUR CREDIT CARD THE MONTHLY MIC SUBSCRIPTION FEE IDENTIFIED AT THE TIME OF PURCHACE.
284 YOU MAY OPT OUT OF YOUR MIC SUBSCRIPTION AT ANY TIME THROUGH YOUR MEMBER PROFILE'S “CREDIT HISTORY” PAGE.
285 F. Priority Man and Cancellation
286 If you have subscribed to Priority Man or a subscription to Priority Man is included in the credit package you have purchased, your profile will on a recurrent basis receive Priority Man (relative to users who do not subscribe to the Priority Man service) status in the search results of women searching for men in your geographic area. This includes high ranking in the search results, highlight, colouring and other features that indicate its priority status as may be determined by us. The frequency by which your profile will be shown in the Priority Man will depend on the number of subscribers to the Priority Man service in your geographic area.
287 The Priority Man service is provided month-to-month on a subscription basis. If you have subscribed to Priority Man, your credit card will be charged for the initial thirty (30) days of Priority Man at the time of purchase. AT THE END OF THIS THIRTY (30) DAY PERIOD OR THE THIRTY (30) DAY PERIOD INCLUDED WITH THE PURCHASE OF YOUR CREDITS, AS APPLICABLE, AND EVERY THIRTY (30) DAYS THEREAFTER, WE WILL AUTOMATICALLY CHARGE YOUR CREDIT CARD THE MONTHLY SUBSCRIPTION FEE IDENTIFIED AT THE TIME YOU PURCHASED YOUR PRIORITY MAN SUBSCRIPTION.
288 YOU MAY OPT OUT OF YOUR PRIORITY MAN SUBSCRIPTION AT ANY TIME THROUGH YOUR MEMBER PROFILE'S “CREDIT HISTORY” PAGE.
289 G. Refund Policy
290 Unless otherwise required by applicable law, you agree that your purchases, including your purchase of credits and subscriptions, are non-refundable except where we have materially breached these Terms in which case you may be entitled to a refund.
291 Please be aware that CREDITS DO NOT HAVE CASH VALUE, ARE NOT TRANSFERABLE NOR REDEEMABLE FOR CASH. SUBSCRIPTIONS ARE NOT TRANSFERABLE BETWEEN ACCOUNTS.
292 H. Credit Card Chargeback Policy
293 We protect our business and credit card processors, banks and other institutions providing related services to us from fraudulent credit card chargebacks. A credit card chargeback is when the holder of a credit card disputes a charge with a credit card processor, bank or other institution and the charge is charged back to the business. The chargeback is fraudulent if the credit card holder disputes a charge to a legitimate charge for services the holder has purchased. You understand and agree that in the event you attempt to create a fraudulent credit card chargeback, we will work with the relevant credit card processor, bank or other institution and law enforcement authorities to investigate the matter. Our assistance may include providing details about the profiles, card authentication and communications with or related to our Service or other users or members. Engaging in activities aimed at reversing a legitimate charge is illegal. You understand and acknowledge that you can be prosecuted for such activity and we reserve the right to reclaim any fees and costs we incur in responding to fraudulently filed chargebacks.
294 I. Other Aspects of the Ashley Madison Service – For Your Entertainment
295 Our Platform and our Service give users the opportunity to explore their fantasies and to interact with others in the Platform. However, there is no guarantee you will find a date or partner on our Platform or by using our Service. Our Platform and our Service are also intended to provide users with amusement and entertainment. You agree that some of the features of our Platform and our Service may be used for such amusement and entertainment purposes.
296 J. Others Using the Platform for Entertainment
297 You also understand and agree that there are users and members on the Platform that use and subscribe to our Service solely for entertainment purposes. Those users and subscribers are not seeking physical meetings with anyone they meet on the Service, but consider their communications with users and members to be for their amusement.
298 You acknowledge and agree that any profiles of users and members, as well as, communications from such persons may not be true, accurate or authentic and may be exaggerated or fantasy. You acknowledge and understand that you may be communicating with such persons and that we are not responsible for such communications.
299 K. Non-Commercial Use
300 Our Platform and the Service is for personal use only and you may not use it in connection with any commercial purposes. Organizations, companies, and/or businesses may not use the Service or our Platform for any purpose. Illegal and/or unauthorized uses of our Platform, including without limitation prostitution and/solicitation, financial fraud, collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to our Platform may be investigated, and appropriate legal action may be taken, including, without limitation, civil, criminal, and injunctive redress. You understand and agree that use of our Platform is with our permission, which may be revoked at any time in our reasonable discretion.
301 L. Third Party Content, Links and Pages
302 In your use of our Service, you may access content from third parties ("Third Party Content"), either via our Service or through links to third party web sites. We do not control Third Party Content and make no representations or warranties about it. We do not endorse or accept any responsibility for any Third Party Content. You acknowledge and agree that by using our Service, you may be exposed to Third Party Content that is false, offensive, indecent, inaccurate, incomplete or otherwise objectionable. Third Party Content is subject to the privacy and security policies of those third parties, which may differ substantially from our privacy policies. You acknowledge and agree that Third Party Content is the sole responsibility of the authors or sites displaying such Third Party Content and under no circumstances will we be liable in any way for any Third Party Content, including, without limitation, any inaccuracies, errors or omissions in any Third Party Content or any losses, liabilities or damages of any kind arising out of or incurred as a result of the use of any Third Party Content posted, stored or transmitted via our Service. You must evaluate, and (as between us) bear all risks associated with Third Party Content, including, without limitation, profiles of other users of our Service.
303 M. User Name and Password
304 You will select a username and password when completing the registration process. You agree that you will not choose a name that may represent you as someone else or that may otherwise violate some third party’s rights. We may refuse to grant you a username that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion. Your username and password are not transferable and may not be assigned. You must keep your username and password confidential, and you are solely and fully responsible for all activities that occur under your username and password. You agree to: (a) immediately notify us of any unauthorized use of your username and password or any other breach of security; and (b) ensure that you log off from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this section.
305 N. Proprietary Rights
306 a. Content is Protected by Law
307 You acknowledge and agree that all content and materials available on our Platform are protected by either our rights, or the rights of our licensors or other third parties, of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You may not use any of the marks, logos, domains and trademarks that you may find on our Platform, unless you have our written permission. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to sell, license, loan, rent, modify, distribute, copy, reproduce, transmit, publicly display, broadcast, publicly perform, publish, adapt, edit, create derivative works, reverse engineer, alter, enhance or in any way exploit any of the Platform or content and materials in any manner. Notwithstanding the above, you may use the content and materials on our Platform in the course of your normal, personal, non-commercial use of our Service in accordance with these Terms. If you download or print a copy of any content for your personal use, you must retain all copyright and other proprietary notices contained on such content. You agree not to circumvent, disable or otherwise interfere with security related features of the Platform or features that prevent or restrict use or copying of content and materials or enforce limitations on use of the Platform or the content and materials therein. All rights not expressly granted herein are reserved.
308 b. Use of Content
309 You agree not to systematically retrieve data or other content or any materials from our Platform to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots" or otherwise. You agree not to use any of our trademarks or logos as metatags on other web sites. You agree not to display any of our Platform in a frame (or any of our content via in-line links) without our express written permission, which may be requested by contacting us at [email protected] You may, however, establish ordinary links to the homepage of our Platform without our written permission.
310 c. Content – AS-IS
311 All of the content on our Platform is provided “AS IS”. All content is the responsibility of the person that originated such content. You understand and agree that under no circumstances will we be liable for any losses, liabilities or damages incurred as a result of your use of any content on our Platform.
312 O. Discontinuance of Service
313 We reserve the right at any time to modify or discontinue, temporarily or permanently, any portion of our Service including where such use may breach any applicable laws. We will endeavor to provide you with 30 days’ prior written notice before such changes become effective. You acknowledge and agree that we will not be liable to you or to any third party for any modification or discontinuance of our Service.
314 P. Blocking of IP Addresses
315 In order to protect the integrity of the Service, we reserve the right at any time, in our reasonable discretion, to block users from certain IP addresses from accessing our Platform where required by law or to avoid a breach of these Terms.
316 Q. Links
317 The Service may provide, or third parties may provide, links, including, without limitation, banner ads and hyperlinks, to other World Wide Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You acknowledge and agree that we are not responsible for any use of your personal information by such third parties. Such third parties have their own privacy policies and procedures. You should check those privacy policies and procedures before you provide any information to them. 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 the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.
318 R. Language
319 Information and services that are provided on the Platform and the Service in a language other than English are only provided as a convenience to you when available. All services to be provided, all obligations of Ashley Madison and all communication between the parties with respect to these Terms will be in the English language. Web pages which are translated from English to other languages may contain errors / omissions. If for any reason the translated text is incorrect, or misleading, the English text shall be deemed as the official version.
320 S. Customer Service
321 Our customer service representatives are available to answer questions you may have about your Service and to enhance your experience using our Service and its features. You may not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately when communicating with our customer service representatives. If we determine, in our reasonable discretion, that your behavior towards any of our representatives is at any time inappropriate, we reserve the right to immediately terminate your access to our Platform and your membership to our Service and you will not be entitled to any refund of unused credits or subscription fees unless required by applicable law.
322 T. Email Communications
323 Subject at all times to our obligations regarding email communications in your respective jurisdiction, you agree that: (i) we and other sites we operate (or our agents) may send you email communications that include messages about the Service and your membership account with us, and services offered by our other sites and third parties; and (ii) any notice, agreements, and other communications we send to you electronically will satisfy any legal requirements, including, without limitation, that such communications be in writing.
324 You may opt out of receiving these notifications from us by clicking the “Unsubscribe from Email Notifications” link located at the bottom of each email we send you. Please be advised that you cannot opt out from operational emails (i.e. non-promotional communications) pertaining your account.
325 Back to the top of these Terms.
326 U. Termination
327 You acknowledge and agree that we may terminate your access to our Service if (a) you breach these Terms; (b) where required by law; or (c) where we reasonably consider there has been a breach of these Terms or a breach of applicable laws. You understand and agree that we are not required, and may be prohibited, from disclosing to you the reason for termination of your access to our Service. You acknowledge and agree that termination of your access to our Service in these circumstances may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete any of your accounts and all related information and files in such accounts and/or bar any further access to such files or our Service. Further, you acknowledge and agree that unless required by applicable law we will not be liable to you or any third party for any costs or damages of any kind for or resulting from any termination of your access to our Service. Unless otherwise required by applicable law, you will not be entitled to a refund of unused credit or subscription fees paid upon termination of your access to our Service by us in the circumstances described in this clause. You may terminate your access to the Service at any time via our Platform or by sending us written or email notice of termination. Unless otherwise required by applicable law, you will not be entitled to any refund of unused credits or subscription fees upon termination of your access to our Service other than for our material breach of these Terms.
328 V. How to Delete/Deactivate Your Account
329 In the event you would like to cease using the Service and delete or deactivate your account, you have the following two options:
330 a. Deactivate My Account:
331 If you select this option, your profile will be removed from all search results and will not otherwise be viewable by other users. However, your message history will be left intact and any users which you have previously interacted with will still be able to access and view the messages you have exchanged. If you select this option, your account, including any personal information related thereto, will not be immediately deleted from our systems; but rather, will be stored and managed in accordance with our Privacy Policy (https://www.ashleymadison.com/app/public/privacy.p) You may restore your account by contacting a customer service representative at https://www.ashleymadison.com/app/public/contactform.p provided your account has not been deleted in accordance with our Privacy Policy (https://www.ashleymadison.com/app/public/privacy.p) .
332 b. Full Delete:
333 If you select this option, your profile will be completely deleted, including, subject to the qualification below, all personal information related thereto. Specifically, (i) your profile will no longer be viewable by other users or come up in search results, and (ii) all personal information associated with your account, including your message history, will be completely deleted in accordance with ruby’s data retention schedule, meaning that some of your usage history may be kept for up to six months. If you select this option, your account cannot be restored and any unused credits associated with your account will immediately expire without refund. Please note it may take up to forty eight (48) hours for your information to no longer be visible on the Service.
334 To select either of the foregoing options, please go to our deactivation page https://www.ashleymadison.com/app/private/member/manage/remove.p while logged into your account on the desktop version of the site.
335 3.- MISCELLANEOUS
336 A. Governing Law
337 Except as otherwise provided in this section or as otherwise required by law, these Terms involve transactions between the parties in interstate commerce and shall be governed by the Federal Arbitration Act, 9 USC § 1-19 of the United States of America. Judgment upon any interim or final award shall be entered and confirmed in any court or tribunal of competent jurisdiction. The substantive law of the State of New York (excluding its conflicts of law provisions) shall apply to all Disputes and these Terms. If there is a difference between the Federal Arbitration Act and New York law, the Federal Arbitration Act controls. In any circumstances where the foregoing Terms permit the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York for such purpose.
338 For Canadian residents (except Quebec), these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. You irrevocably attorn and submit to the exclusive jurisdiction of the Ontario courts situated in the City of Toronto and waive any objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.
339 For Quebec residents, these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein.
340 For Australian residents, these Terms will be governed by, interpreted and enforced in accordance with the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
341 B. Entire Agreement
342 These Terms, together with our Privacy Policy (https://www.ashleymadison.com/app/public/privacy.p) contain the entire understanding of the parties regarding their subject matter, and supersede all prior and contemporaneous agreements and understandings between the parties regarding their subject matter. These Terms shall be binding on the parties, their successors and permitted assigns. No failure or delay by a party in exercising any right, power or privilege under these Terms shall operate as a waiver thereof. The invalidity or unenforceability of any of these Terms shall not affect the validity or enforceability of any other of these Terms, all of which shall remain in full force and effect. The headings used in these Terms are for convenience only and shall not be deemed to define or limit the content of any provision of these Terms. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
343 C. Disclaimers of Warranties
344 The following provision may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
345 YOU AGREE THAT:
346 OUR SERVICE AND ALL CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.
347 WHILST WE TAKE REASONABLE COMMERCIAL EFFORTS TO PROVIDE THE SERVICE TO YOU, WE CANNOT PROMISE OR WARRANT THAT (A) OUR SERVICE WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN ON OUR SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OR RELIABILITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OR IN CONNECTION WITH OUR SERVICE WILL MEET YOUR EXPECTATIONS; (E) ANY INFORMATION YOU PROVIDE TO OTHER USERS WILL NOT BE DISCLOSED TO THIRD PARTIES; (F) ANY PROFILE ON OUR PLATFORM IS ACCURATE, UP TO DATE OR AUTHENTIC; (G) ANY MATERIAL OR FILES THAT YOU CAN DOWNLOAD FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY HAVE DAMAGING; (H) THIRD PARTIES WILL NOT USE YOUR CONFIDENTIAL INFORMATION IN AN UNAUTHORIZED MANNER; OR (I) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING WITHOUT LIMITATION INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH OUR PLATFORM AND/OR IN CONNECTION WITH THE SERVICE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE NOR ANY OF OUR AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS WILL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, RESULTING FROM ANYONE'S USE OF OUR PLATFORM OR THE SERVICE, ANY CONTENT POSTED ON OUR PLATFORM OR TRANSMITTED TO USERS, ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES OR ANY CONDUCT OR INTERACTIONS BETWEEN USERS OF OUR PLATFORM, WHETHER ONLINE OR OFFLINE.
348 IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OUR PLATFORM OR IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY USERS OF OUR PLATFORM OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF OUR PLATFORM OR THE SERVICE. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS.
349 D. Our Limitations
350 We are not responsible for any damage or harm resulting from your interactions with other users of our Service. You understand and acknowledge that we do not pre-approve any of our users or members nor do we in any way inquire into the backgrounds of the users of the Service or attempt to verify their statements. We make no representations or warranties as to the conduct of our users or their compatibility with any current or future users. WE DO NOT PERFORM CRIMINAL OR ANY OTHER FORM OF BACKGROUND CHECKS ON OUR USERS OR MEMBERS. It is your responsibility to investigate the background, financial status, criminal background, character and all other aspects that might affect whether or not you want to interact with a user or member on our Service. We reserve the right, but have no obligation, to monitor all interactions between you and other users of our Service and to take any action in good faith to restrict access to or the availability of any material that we or another user of our Service may consider to be illegal, obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable and you hereby expressly consent to the foregoing. Email messages sent between you and other users of the Service that are not readily accessible to the general public may be reviewed by us for compliance with these Terms, but will be treated by us as private to the extent required by applicable law. IN NO EVENT SHALL WE BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, PUNITIVE, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO YOUR CONDUCT OR THE CONDUCT OF ANY OTHER USER, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE. We are not responsible for, and cannot control, the use by others of any information which you provide to them and you should use caution in selecting the personal information you provide to others through the Service. We cannot and do not assume any responsibility for the content of messages sent by other users of the Service. We are not responsible for the accuracy of information communicated to you on the Service or for the content of any communications you may receive from other users. We reserve the right to investigate and take appropriate lawful action against anyone who violates these Terms, including without limitation, removing the offending communication from the Service, terminating the violator's access to the Platform and contacting and disclosing information to the relevant authorities and pursuant to legal process. We will act reasonably in deciding what action, if any, to take, however, we are under no obligation to take any such action.
351 E. Limits of Liability
352 The following provision may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
353 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNATIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE; (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICE; (C) UNAUTHORIZED ACCESS TO OR PERMITTED DISCLOSURE OR ALTERATION OF YOUR CONTENT; (D) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE; OR (E) ACTIONS OR INACTIONS OF OTHER USERS OF OUR PLATFORM OR OUR SERVICE OR ANY OTHER THIRD PARTIES THAT WE DO NOT CONTROL FOR ANY REASON.
354 WE WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATION SYSTEM BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
355 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF NOTWITHSTANDING THE FOREGOING WE ARE FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS WILL NOT EXCEED THE SUM OF FIVE THOUSAND ($5,000) DOLLARS.
356 NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY OF OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, INCLUDING LIABILITY IN RELATION TO DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR WILFUL OR RECKLESS MISCONDUCT OR FRAUD OR FRAUDULENT MISREPRESENTATION, IN WHICH CASE, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
357 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN GUARANTEES, CONDITIONS, REPRESENTATIONS, WARRANTIES OR TERMS IMPLIED OR IMPOSED BY APPLICABLE LAW, AND DO NOT ALLOW LIMITATIONS ON HOW LONG ANY SUCH GUARANTEE, CONDITION, REPRESENTATION, WARRANTY OR TERM MAY LAST. SOME JURISDICTIONS ALSO DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN FORMS OF DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET OUT HEREIN MAY NOT APPLY TO YOU. HOWEVER, NOTHING IN THESE TERMS EXCLUDES, RESTRICTS OR MODIFIES ANY GUARANTEE, CONDITION, REPRESENTATION, WARRANTY OR TERM WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE TERMINATION OF THESE TERMS. IF ANY GUARANTEE, CONDITION, REPRESENTATION, WARRANTY OR TERM IS IMPLIED OR IMPOSED BY ANY APPLICABLE LAW AND CANNOT BE EXCLUDED (A "NON-EXCLUDABLE PROVISION"), AND WE ARE ABLE TO LIMIT YOUR REMEDY FOR A BREACH OF THE NON-EXCLUDABLE PROVISION, THEN OUR LIABILITY FOR BREACH OF THE NON-EXCLUDABLE PROVISION IS LIMITED EXCLUSIVELY (SO FAR AS APPLICABLE LAWS DO NOT PROHIBIT) TO, AT OUR OPTION, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
358 IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
359 F. Indemnity
360 The following provision may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
361 To the fullest extent permitted by applicable law, you agree to indemnify us and our affiliates, directors, officers, employees, agents, customers and third parties against any claim, demand, cause of action, debt, loss, costs, liabilities and expenses (including reasonable legal fees) relating to, or arising in connection with, directly or indirectly, (a) your use of or inability to use our Platform or Services; (b) any posts made by you; (c) your infringement of the intellectual property rights, or any other rights, of any party; (d) your violation of any of these Terms and (e) your violation of any applicable laws, rules or regulations.
362 G. Digital Millennium Copyright Act (“DMCA”)
363 We respect the intellectual property rights of others, and we ask you to do the same. We may, in appropriate circumstances and at our reasonable discretion, terminate service and/or access to the Platform for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Platform, please provide our designated agent the following information:
364 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
365 Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
366 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 at the Platform, and information reasonably sufficient to permit us to locate the material.
367 Information reasonably sufficient to permit us to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
368 A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
369 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 owner of an exclusive right that is allegedly infringed.
370 Our agent for notice of claims of copyright or trademark infringement on the Platform can be reached as follows:
371 ruby Life Inc.
372 Attention: General Counsel
373 PO Box 67027
374 Toronto, ON Canada M4P 1E4.
375 Email: [email protected]
376 Please also note that for copyright infringements under Section 512(f) of the U.S. Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
377 H. Submitting a DMCA Counter-Notification
378 We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to our designated agent that includes all of the following information:
379 Your physical or electronic signature;
380 Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
381 A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
382 Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
383 I. Termination of Repeat Infringers
384 We reserve the right, in our sole discretion, to terminate the account or access of any user of our Platform and/or Service who is the subject or repeated DMCA or other infringement notifications.
385 J. Assignment
386 You do not have the right to assign these Terms or any of your rights hereunder or to our Service to anyone. We have the right to assign any or all of its rights and obligations under these Terms. Provided such rights and obligations are assumed by such third party, we shall be relieved of any and all liability under these Terms and in such event you hereby agree to release us of all liability, claims, charges, damages and causes of action.
387 K. California Consumer Notice
388 Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Platform and Service are provided by ruby Life Inc. d/b/a Ashley Madison. If you have a question or complaint regarding the Platform or Service, please contact Customer Service at [email protected] . You may also contact us by writing us at ruby Life Inc., PO Box 67027, Toronto, Ontario Canada M4P 1E4, Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
389 L. Communication in English
390 For Quebec residents, the parties to these Terms hereby confirm their express wish that this Agreement, as well as all other documents related to it, including but not limited to all confirmations, notices, waivers, consents and other communications between the parties in connection with this Agreement be in the English language only and declare themselves satisfied with this; les parties aux présentes conditions confirment leur volonté expresse de voir la présente convention, de même que tous les documents qui s’y rattachent, incluant, mais non de façon limitative, tous les confirmations, avis, renonciations, consentements et autres communications entre les parties, rédigés en langue anglaise seulement et s’en déclarent satisfaites.
391 M. Notices.
392 If you have any questions or concerns about these Terms, our Privacy Policy, the practices of the Ashley Madison, or your dealings with us, you may contact a representative of our company by using the Contact Form or by regular mail. Unless provided otherwise in these Terms, all notices to us shall be delivered to ruby Life Inc., PO Box 67027, Toronto, Ontario Canada M4P 1E4, Attention: General Counsel, and all notices to you shall be sent by email to you at the email address you provided to us at the time you registered or through a later notice of a change of address. We may also send you notice by overnight courier or certified mail, postage prepaid. Email notices shall be deemed received 24 hours after the email is sent, unless the sender is notified the email address is invalid or has been returned for some other reason. All other notices shall be deemed received when delivered.
393 N. Export Controls
394 Software and content provided through our Platform and our Service is subject to export controls of the United States of America and other applicable jurisdictions. The United States Department of Commerce prohibits export or diversion of software and certain content to specified countries and persons. No software or content from the Services may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any such software or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not license or otherwise permit anyone in any such country or on any such list to receive software or content that is subject to export control.
395 Back to the top of these Terms.
396 4.- ARBITRATION AND CLASS ACTION WAIVER
397 Please read this carefully. It affects your rights. Depending on your place of residence, these terms may not apply to you. For example, the following terms may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
398 A. Scope
399 For US residents, all disputes, controversies, causes of action (in tort, contract, by statute or otherwise), including, without limitation, Disputes arising from or relating to this Arbitration Provision (including the interpretation, breach, termination and invalidity thereof) or the relationship that results from these Terms (collectively, “Disputes”) shall be resolved by binding arbitration by a single independent and impartial arbitrator under the applicable Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes of the American Arbitration Association (“AAA”).
400 For residents in all other jurisdictions, all Disputes shall be resolved by binding arbitration by a single independent and impartial arbitrator under the applicable Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes of the International Chamber of Commerce (“ICC”).
401 Arbitration replaces the right to go to court, and therefore the parties waive any right that you or Ashley Madison might otherwise have had to a jury trial or the opportunity to litigate any claims in court before either a judge or jury. Notwithstanding the foregoing, Ashley Madison reserves the right to pursue the protection of its intellectual property rights and confidential information and to stop other illegal activities through immediate injunctive relief or other equitable relief at any time and without first resorting to informal procedures or arbitration, through any courts of competent jurisdiction.
402 B. Venue
403 The exclusive venue for the arbitration shall be New York, New York if claimant is a resident of the United States of America. The parties will agree on a reasonable location, in the event that New York is an inappropriate forum. The parties will endeavor to minimize the need for long distance travel through use of telephonic communications and submission of documents as permitted under the applicable rules for Expedited Procedures. The official language of the arbitration shall be English.
404 C. Small Claims
405 Both parties retain the right to file any claim that is not aggregated with the claim of any other persons and whose amount in controversy is properly within the jurisdiction of a court which is limited to adjudicated small claims.
406 D. Class and Consolidated Claims Waiver
407 To the extent permitted under applicable law, it is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Disputes subject to arbitration under these Terms or any Dispute between the parties. To the extent permitted under applicable law, the parties also waive any right to assert consolidated claims with respect to any Disputes subject to arbitration under these Terms or any Dispute between the parties.
408 E. Limit of Liability
409 Liability for both parties is limited $5,000 in damages. Parties waive and the Arbitrator shall not be empowered to grant indirect, consequential, special, punitive or exemplary damages and/or damages or relief in excess of those permitted by these Terms unless the statute under which they are suing provides otherwise. An arbitration award rendered by the arbitrator may be entered in any court having jurisdiction for the purposes of enforcement.
410 F. Notice of Claims, Timing of Disputes and Nature of Award
411 Any Dispute shall be filed within one (1) year of the date the Dispute arose or occurred. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to any Dispute. Arbitration shall be commenced by filing a claim pursuant to the applicable AAA Rules, in the case of US residents, or the applicable ICC Rules, in the case of residents in all other jurisdictions. The arbitration shall be completed, barring extraordinary circumstances within ninety (90) days of the filing of the claim. The parties may grant reasonable continuance upon good cause shown. The Award shall be reasoned and shall be rendered within thirty (30) days of closure of the arbitration proceedings.
412 G. Discovery and Hearing Procedures
413 All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing. Discovery shall be expeditiously completed within three (3) months of the time the parties are at issue. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions do not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be promptly submitted to and promptly resolved by the arbitrator. For a Dispute involving a United States resident, the parties may elect to use any of the Expedited Procedures of the Commercial Dispute Resolution Procedures or Supplementary Procedures for Consumer-Related Disputes of the AAA
414 H. Emergency and Provisional Remedies
415 Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration.
416 I. Confidentiality
417 The arbitrator will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitration will not be confidential unless you request that it remain confidential.
418 J. Payment of Arbitration Fees and Costs
419 Ashley Madison will advance all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration, including, without limitation, costs association with attorneys or experts witnesses. The handling of fee arrangements and the payment of fees should be conducted by the Independent ADR Institution. If the arbitration is decided in your favor, you will not be required to reimburse Ashley Madison for any of the fees and costs it advanced. If the arbitration is decided in Ashley Madison’s favor, you shall reimburse Ashley Madison for its arbitration fees and costs, but only to the extent awardable in a judicial proceeding and permitted under the AAA or ICC, as applicable.
420 K. Waiver of Jury Trial
421 THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under these Arbitration terms. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Ashley Madison in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ASHLEY MADISON WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
422 L. Survival and Severability
423 These Arbitration terms shall survive the termination of your service with Ashley Madison. If any portion of this Arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.
424 Back to the top of these Terms.