ADVERTISER TERMS OF SERVICE Effective Date: January 1, 2003 Last Modified: June 22, 2015
INTRODUCTION – You must read and consent to these Advertiser Terms of Service (hereinafter “Terms;” “Agreement;” “Advertiser Agreement”) before You are permitted to access or use Men4RentNow.com as an Advertiser. We ask that You read this Agreement carefully, as it impacts Your legal rights. Upon accessing the Site, You have agreed to Our User Agreement, and by accessing the Site and Services as, or with the intent of acting as an Advertiser, You further agree to the following Terms:
1. PRELIMINARY PROVISIONS
1.1. Party Definitions - The operative parties referred to in this Agreement are defined as follows:
1.1.1. Us, the Company – Wintice Group, Inc. is the operator of www.Men4RentNow.com. Hereinafter, Wintice Group, Inc. shall be referred to as “Company.” When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Company d/b/a www.Men4RentNow.com. Additionally, when the terms “the Site” or “Site” are used, these terms refer to www.Men4RentNow.com, along with any other website published by Us, unless such site is listed as specifically exempt from this Agreement, and any such mobile interface version(s) of the same. Our Site, and the services the Site provides (”Services”), may contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other website content owned, operated, licensed, or controlled by the Company (collectively, “Materials”).
1.1.2. You, the Advertiser – You are a User who wishes to offer and promote services via the Site’s advertising Services. Hereinafter, You shall be referred to as “Advertiser” or “You” or through any second-person pronouns, such as "Yours," etc. You certify that You are over eighteen (18) years of age, and competent to engage in contracts. Advertiser responsibilities and obligations are further described below.
1.1.3. The Parties – Throughout certain provisions of this Agreement, Company and Advertiser shall be collectively referred to as the “Parties” and as “Party” when referred to individually within the same provision.
1.2. What this Agreement is – This Agreement is a legal contract between You and the Company, governing Your activities as an Advertiser via the Site and its Services. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By becoming an Advertiser on this Site, You are agreeing to all terms and conditions within this Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site and any other services provided by the Company. Nothing in this Agreement is intended to create any enforcement rights by third parties.
1.3. Consideration – Consideration for Your assent to the provisions in this Agreement has been provided to You in the form of allowing You to use Our Site and Our Services, which includes allowing You become an Advertiser on the Site. You agree that such consideration is both adequate, and that it is received upon Your acceptance of this Agreement.
1.4. Electronic Signatures / Assent Required – Nobody is authorized to become an Advertiser of this Site, or access the Services provided to Advertisers, unless they have signed this Agreement. Such signature does not need to be a physical signature, since electronic acceptance of this Agreement is permitted by the Electronic Signatures in Global and National Commerce Act (E-Sign Act) and similar federal and state laws. You manifest Your agreement to this contractual agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked or will click a button containing the words “I agree” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You click any link, button, or other device provided to You in any part of Our Site’s interface, then you have legally agreed to all of these Terms of Service. Additionally, by using any part of Our Site or Services for promotional purposes and/or as an Advertiser, You understand and agree that We will consider such use as Your affirmation of Your complete and unconditional acceptance to all of the terms in this Agreement. If We discover that You have not validly signed this Agreement, You will be considered an unauthorized User of the Site and its Services, which constitutes a material breach of these Terms, as well as Our Site’s User Agreement.
1.5. Revisions to this Agreement:
1.5.1. From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. Any updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the Parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
1.5.2. We agree that if We change anything in this Agreement, We will change the “last modified” date at the top of this Agreement so that it is immediately obvious that We have updated the Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed, and that You need to re-review it in order to determine how Your rights and responsibilities may have been affected by the revisions.
1.5.3. Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for Your failure to do so and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
1.6. Incorporations by Reference – This Advertiser Agreement represents the additional terms and conditions of Our Services for Advertisers on Men4RentNow.com, however, additional guidelines and rules are hereby incorporated by reference. The document(s) which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
User Agreement - www.men4rentnow.com/terms.cfm
1.7. Parties are Distinct Entities – Acting as an Advertiser does not mean that You are an employee of Company. You are specifically placed on notice that You are not an employee of Company. Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a formal business relationship of any kind. Company and Advertiser are completely separate entities and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, joint venturer agent, or representative of the other for any purpose whatsoever. No Party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another Party or to bind another in any manner or thing whatsoever. 1.8. If You are intend to advertise, facilitate, or promote any illegal activities, please leave this Site immediately and do not attempt to use the Services. You acknowledge that You are aware of the laws, regulations, policies and community standards in your jurisdiction, and You will only access the content on the Site and/or use the Services if You believe that the content on the Site does not violate such laws, regulations, policies or standards. Accordingly, You strictly adhere to any and all federal, state, and local regulations governing escort and/or massage therapy advertisements, specifically, the inclusion of any disclosures or disclaimers required to be present in such advertising material. You acknowledge that Company has taken a position in support of anti-trafficking efforts, and strictly prohibits any illegal conduct on the Site. In the event that We are put on notice of any such unlawful activities occurring on Our Site or via the Services, We intend to fully cooperate with law enforcement regarding any investigation(s) involving the same. You specifically agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or country.
2. EXPLANATION OF ADVERTISER ACCOUNT & SERVICES 2.1. Advertiser Access & Account: 2.1.1. Registration – To access certain features of the Site and Services, You must register as an Advertiser of the Site, thereby creating an account allowing You to utilize the Site’s advertising forum capabilities (“Advertiser Account”). We reserve the right to contract with a third party entity to implement and enforce identity and/or age verification services associated with Advertiser access to the Site and Services. This third party entity may impose additional terms and conditions governing such verification services. You are responsible for abiding by such terms. We disclaim any liability associated with Your violation of such terms. 2.1.2. You are prohibited from creating more than one Advertiser Account with the Site. 2.1.3. You are prohibited from transferring or selling access to Your Advertiser Account and are responsible for actions originating from Your Advertiser Account. 2.1.4. You are prohibited from creating an Advertiser Account if accessing Our Site, or participating in Our Services, violates any law(s) applicable to Your jurisdiction. 2.1.5. You are prohibited from creating an Advertiser Account on behalf of a third party (this includes both an individual or corporate entity), despite any authorization by such third party, or documentation governing permitted agency action of the same. 2.1.6. The Site and its affiliates disclaim any and all liability arising from fraudulent entry and use of the Site. If an Advertiser Account is accessed by fraudulent and/or unlawful means, the Site may terminate the associated Advertiser Account immediately within its discretion, and take all necessary and appropriate actions under applicable federal, state, local and/or international laws. 2.1.7. You agree that all information provided in registering, or otherwise creating an Advertiser Account is true, accurate, current and complete. You also agree that You are responsible for maintaining the accuracy of such information throughout Your tenure as an Advertiser. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to deny, suspend, or terminate Your Advertiser Account and refuse any and all current or future use of the Site and Services by You, as well as to subject You to potential criminal and civil liability. 2.1.8. You are entirely responsible for any and all activities conducted through Your Advertiser Account. You agree to notify Us immediately of any unauthorized use of Your Advertiser Account as well as of any other breach of security. 2.2. Advertiser Membership Subscriptions: 2.2.1. Membership Subscription(s) – As part of completing registration of an Advertiser Account, You will be required to select one of the designated advertising packages provided by the Site (hereinafter, “Membership Subscription(s)”). Our Membership Subscriptions are customized to accommodate Your use of the Site and degree of participation in the Services. The advertising features and options associated with the respective Membership Subscription are prominently displayed prior to purchase. PLEASE PAY CLOSE ATTENTION TO THE VARYING FEATURES OFFERED BY EACH MEMBERSHIP SUBSCRIPTION. Should You have any additional questions regarding the same, please contact Our customer support team at: firstname.lastname@example.org. 2.2.2. Free Access Membership Subscriptions – The Site currently offers its Free Trial Membership and Free Limited Access Membership (collectively, “Free Access Membership Subscriptions”) free of charge to certain eligible Advertisers. Our Free Access Membership Subscriptions permit varying degrees of Site and/or Service access and participation. ADVERTISERS ACCESSING THE SITE AND SERVICES VIA A FREE ACCESS MEMBERSHIP SUBSCRIPTION ARE STILL GOVERNED BY THE RIGHTS AND RESPONSIBILITIES SET FORTH IN THIS AGREEMENT. For additional details regarding the various Free Access Membership Subscriptions currently available to Our Advertisers, http://www.men4rentnow.com/escort-subscribe-static.cfm 2.2.3. Rates – The pricing of Our Membership Subscriptions vary depending on several Advertiser-specific variables, including but not limited to the following: usage advertising plan; payment method; duration of plan; automatic renewal; and recurring payment or one-time flat fee. Such rates are subject to change within Our discretion at any time. The fee(s) associated with Your selected Membership Subscription is prominently displayed at the time of purchase. For additional details and the current pricing rates associated with the Membership Subscriptions available to Advertisers, http://www.men4rentnow.com/escort-subscribe-static.cfm 2.2.4. Refunds – You understand and agree that it is Our standard policy that purchases and/or fees associated with Your Advertiser Account are nonrefundable at this time. Deviating from Our standard refund policy is within in Our sole discretion. PLEASE NOTE THAT CANCELATION OF A SUBSCRIBER MEMBERSHIP DURING THE COURSE OF A REOCCURRING BILLING CYCLE DOES NOT ENTITLE YOU TO A REFUND FOR THE REMAINDER OF THE BILLING PERIOD; YOU WILL CONTINUE TO HAVE ACCESS TO THE SITE AND SERVICES FOR THE REMAINDER OF THE CURRENT BILLING CYCLE. 2.3. Billing Terms: 2.3.1. We reserve the right to contract with a third party to process any and all payments associated with the Site and/or Services. Such third party may impose additional terms and conditions governing payment processing. You are responsible for abiding by such terms. We further disclaim any liability associated with Your violation of such terms. 2.3.2. WE MAY UTILIZE AN AUTOMATIC REBILLING CYCLE IN ACCORDANCE WITH YOUR SELECTED PAYMENT METHOD AND/OR MEMBERSHIP SUBSCRIPTION. For questions or concerns regarding recurring billing, or cancellation of the same, please visit: www.ccbillcs.com or call: 1-888-596-9279. 2.3.3. You agree to pay any and all fees or account charges related to Membership Subscriptions, or any other purchases and/or upgrades associated with Your Advertiser Account immediately when due in accordance with Our stated billing policy, or that of Our third party billing agent. 2.3.4. You understand and agree that You are responsible for any and all fees or penalties that are associated with Your Advertiser Account. You agree to pay any and all amounts due immediately upon cancellation or termination of Your Advertiser Account. 2.3.5. We reserve the right to make changes at any time to Our fees and billing methods, including the addition of administrative or supplemental charges for any feature(s) or service(s) provided to Advertisers, with or without prior notice to You. 2.3.6. You must promptly inform Our third party billing agent, of all changes, including, but not limited to, changes in Your address and changes in Your credit card used in connection with billing and/or payment for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your Advertiser Account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your Advertiser Account, along with any additional fees and/or penalties imposed by Our third party billing agent. 2.3.7. Billing Errors - If You believe that You have been erroneously billed for activity associated with Your account, please notify Our third party billing agent immediately of such error. If You do not do so within thirty (30) days after such billing error first appears on any account statement, the fee in question will be deemed acceptable by You for all purposes, including resolution of inquiries made by or on behalf of Your banking institution. You release Us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported within thirty (30) days of the bill being rendered to You. These terms shall supplement and be in addition to any terms required by third party billing entities We engage to provide billing services. You are responsible for review and compliance with such entity’s terms in addition to those contained in this Agreement. 2.4. Advertiser Access via Mobile Device 2.4.1. Optional Features – Advertiser understands and agrees that by accessing the Site and/or Services via mobile device, there may be additional Advertiser Account features available as a result. Such features, though optional, may launch automatically upon access via mobile device. Advertiser may disengage such optional features at any time. Advertiser understands and agrees that by electing to opt-in to such features, any additional information, whether acquired actively or passively, as a result of engaging such features may be made public. 2.4.2. Communications Pertaining to Site; Services; Advertiser Account – We may offer You the ability to receive communication(s) pertaining to the Site, Services, and/or Your Advertiser Account via short message service text messaging, or a comparable system. Such text messaging system is part of “Services” as that term is used in this Agreement. Should You wish to access or otherwise interact with the Site or Services via text messages, You will be required to submit a valid telephone number upon Advertiser Account registration. Use of the text messaging system is not a requirement to become an Advertiser and is simply another way for You to access information on the Site. However, should You choose to utilize this feature, You understand and agree that You are expressly consenting to receiving text message communications regarding Your use of the Site and Services. You understand and agree that such messages are based on Your status as an Advertiser participating in the Site’s Services. You understand and agree that You are specifically soliciting such messages in order to access such Services. You are responsible for all text and/or data fees charged by Your mobile carrier. You understand and agree that You are wholly responsible for the security of Your mobile device, and therefore, You are liable for any and all Advertiser Account activity associated with such device. . 2.5. Termination of Advertiser Account: 2.5.1. You may cancel Your Advertiser Account at any time via Your personalized Advertiser Account portal, or by contacting Our Customer Service at: email@example.com. 2.5.2. Without limiting other remedies, We may immediately issue a warning, temporarily suspend, indefinitely suspend, or terminate Your access and use of the Site and Services at any time, with or without advance notice, if: 22.214.171.124. We believe, in Our sole discretion, that You have breached any material term of this Agreement or the document(s) it incorporates by reference; 126.96.36.199. We are unable to verify or authenticate any information You provide to Us; 188.8.131.52. We believe, in Our sole discretion, that Your actions may cause legal liability for You, Our Users or Us; or 184.108.40.206. We decide to cease operations or to otherwise discontinue any services or options provided by the Site or parts thereof. 2.5.3. You agree that if Your access is terminated by Us, You will not attempt to regain access to the Site, using the same or different registration information, without prior written consent from Us. 2.5.4. You agree that neither the Site nor any third party acting on Our behalf shall be liable to You for any termination of Your access to any part of the Site.
3. ADVERTISER CONTENT 3.1. Advertiser Content – Advertiser Content includes any text, images, video, communication, or other content or media associated with Your Advertiser Account, published or transmitted via the Site or Services, or otherwise provided by You during Your use of the Site or Services. You agree that any and all Advertiser Content associated with Your Advertiser Account will comply with all provisions set forth in this Agreement. 3.2. License to Use Advertiser Content: 3.2.1. License Grant – You hereby grant Us a royalty-free, perpetual, nonexclusive right and license to use, reproduce, modify, adapt, publish, translate, transmit, create derivative works from, distribute, perform, communicate to the public, and display such materials (in whole or in part) worldwide and/or to incorporate such materials into any form, medium, or technology now known or later developed. Further, You hereby grant to Our Users, as defined in the User Agreement, a nonexclusive license to access the Advertiser Content via the Site and Services. 3.2.2. Advertiser understands and agrees that all license rights granted to Us shall be fully sub-licensable, assignable, and transferable, within Our sole discretion. Accordingly, We reserve the right to sub-license any and all Advertiser Content for use by any third party entity, or that which is under Our legal control. 3.2.3. You represent and warrant that You have all rights, including intellectual property and publicity rights, to grant the license set out above. Uploading any Advertiser Content found to infringe upon the proprietary rights of another party may result in the deactivation or deletion of Your Advertiser Account. 3.2.4. You understand and agree that by uploading Advertiser Content, You are consenting to the above license in its entirety, which provides Us the right to: 220.127.116.11. Reproduce, transmit, communicate, display, or distribute Advertiser Content, on or as part of Our Site(s), on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known; 18.104.22.168. Reproduce Advertiser Content in digital form of display on the Internet (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hypertext links); and/or 22.214.171.124. Adapt, modify, or alter Advertiser Content or otherwise create derivative works based upon it; and for all other reasonable promotional or commercial uses either as part of the operation of Our Site(s), or as a promotion or operation of any derivative or related businesses. 3.3. Given the perpetual nature of the licensed rights in the Advertiser Content granted by You to Us, removal of any such Advertiser Content is within Our sole discretion. Therefore, You understand and agree that upon termination or cancelation of Your Advertiser Account, any associated Advertiser Content may continue being utilized by the Site. 3.4. You accept sole responsibility for any activity or material associated with Your Advertiser Account. Should any Advertiser Content associated with Your Advertiser Account violate any laws or other applicable legal restrictions, Your actions shall constitute a material breach of this Agreement. 3.5. Restrictions on Advertiser Content – Under no circumstances may Your Advertiser Content include any of the following: 3.5.1. Actual or simulated sexual activity; 3.5.2. Defamatory, obscene, child pornography, harassing, illegal, or otherwise objectionable material (determination of which is in Our sole discretion); 3.5.3. Code, slang, and/or acronyms referencing sexual acts, drug use, violence, or other illegal activity; 3.5.4. Disparaging text regarding the Site, Services, Users, or the respective activity of the same; 3.5.5. Express or implied promotion of a competitor website (determination of which, is within Our sole discretion); 3.5.6. Disclosure of personal contact information pertaining to other Advertisers; 3.5.7. Your own personal contact information, excepting information disclosed via the Site’s permitted format; 3.5.8. Images depicting subjects under eighteen (18) years of age at the time of creation; 3.5.9. Text implying that any depicted person is under eighteen (18) years of age; 3.5.10. Fake or inaccurate depictions of You as the Advertiser; 3.5.11. Images, videos, or text published, or otherwise used without the authorization of its legal owner; and 3.5.12. Communications suggesting, soliciting, or implying the unlawful exchange of funds for sexual activity (including, but not limited to prostitution-related services). 3.6. We reserve the right, within Our sole and absolute discretion, to reject and/or remove any Advertiser Content, although We undertake no obligation to monitor Advertiser Content, or take any such actions. 3.7. We encourage Our Users to report any violations of these restrictions by other Users. Violating any of the Site’s content restrictions may result in suspension or cancellation of Your Advertiser Account. 3.8. Advertiser Records-Keeping Obligations – Advertiser represents and warrants that all Advertiser Content is exempt from the obligations set forth in 18 U.S.C. §2257 et. seq. and 28 CFR Part 75 et. seq., as amended (“Section 2257”). The Site simply acts as a hosting forum for Advertiser Content, therefore, if any Advertiser Content is deemed not to be exempt from Section 2257 compliance obligations, Advertiser understands and agrees that he is solely responsible for maintaining all necessary records required for legal compliance under Section 2257. Should Advertiser reside in a jurisdiction that does not require Section 2257 compliance, Advertiser agrees to maintain any records required under such jurisdiction’s applicable laws, in addition to complying with the obligations set forth under Section 2257, as such Advertiser Content may be accessible from the United States.
4. INDEMNIFICATION 4.1. You agree to defend and indemnify Us should any User or third party be harmed by Your actions or should We be obligated to defend any claims including, without limitation, any criminal or civil action brought by any party due to Your actions in participating as an Advertiser on Our Site. 4.2. You agree to defend, indemnify, and hold harmless Our Site, its corporation, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your conduct as an Advertiser, or Your breach of any part of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or suit at Our own expense, and choose Our own legal counsel; however, We are not obligated to do so. 4.3. In order to maintain the integrity of the Site and Services, or to investigate complaints, You agree to allow Us to access Your Advertiser Account and any other information You have submitted or created for as long as reasonably required to investigate the complaint or protect the Services of this Site.
5. LIMITATION OF LIABILITY 5.1. In no event shall We (or Our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person’s use, misuse, or inability to use the Site, Services, or any of the materials contained therein, even if We have been advised of the probability of such damages. This is for any matter arising out of or relating to this Agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if We have been advised of the possibility of such damages. 5.2. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of the Site or Services for a period of more than one (1) month from the accrual of the applicable cause or causes of action or ten dollars ($10.00), whichever is greater. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
6. FORCE MAJEURE: We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s or Services’ performance.
7. JURISDICTION & DISPUTE RESOLUTION 7.1. Governing Law – This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of California, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation permitted under this Agreement must be, without exception, initiated in Los Angeles County, California. 7.1.1. All Parties to this Agreement agree that all litigation permitted under this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Los Angeles County, California. 7.1.2. The Parties agree to exclusive jurisdiction in, and only in, Los Angeles County, California. 7.1.3. The Parties agree to exclusive venue in, and only in, Los Angeles County, California. 7.1.4. The Parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the Parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph. 7.1.5. All Parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any litigation permitted under this Agreement 7.1.6. All Parties stipulate that the state and federal courts located in Los Angeles County, California shall have personal jurisdiction over them for the purpose of any litigation permitted under this Agreement that is not otherwise subject to the arbitration provisions, infra. 7.1.7. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the address for the giving of notices as set forth in this Agreement. 7.1.8. Any final judgment rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary. 7.1.9. Right to Injunctive Relief – Both Parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other Party’s breach, and that in any litigation permitted under this Agreement, an aggrieved Party shall therefore be entitled to seek injunctive relief, in addition to seeking all other remedies available at law or in equity. 7.2. ARBITRATION PROVISIONS 7.2.1. If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party must submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims by Us pertaining to intellectual property, injunctions, attachment, garnishment, and other equitable relief. The arbitration shall be confidential. The arbitration shall be conducted in Los Angeles County, California, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall be willing to execute an oath of neutrality. 7.2.2. The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS. 7.2.3. No waiver of right to arbitration -- There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving Party to the other Party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate. 7.2.4. The First Amendment applies to arbitration proceedings – Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the Parties. Both Parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both Parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
8. MISCELLANEOUS PROVISIONS 8.1. Confidentiality. As an Advertiser, You may have access to certain information or content on the Site that non-Advertiser Users cannot access. You agree that any information or content You receive in the course of Your duties as an Advertiser is to be treated as confidential. You may not disclose confidential information to any other User, or third party, whether or not such disclosure is public, or via private means such as email or other “private” messaging systems. You agree that You will keep such information or content confidential indefinitely, even after Your status as an Advertiser ends, or this Agreement is otherwise terminated. 8.2. Attorneys’ Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing Party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys’ fees and costs incurred in connection therewith, including attorneys’ fees incurred on appeal. 8.3. Assignment. Advertiser may not assign, transfer, or delegate any and/or all of Advertiser’s rights or obligations under this Agreement without Our written consent. However, We reserve the right to assign this Agreement in whole or in part. 8.4. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect. 8.5. No Waiver. No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement. 8.6. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement. 8.7. Complete Agreement. This Agreement constitutes the entire agreement between the Parties with respect to Your access and use of the Site and Services as an Advertiser, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
Any and all questions regarding the Advertiser Terms of Service should be submitted to: firstname.lastname@example.org
This document prepared by: Walters Law Group, www.FirstAmendment.com. All Rights Reserved. © (2015).