Membership Subscription Terms of Service Agreement
TABLE OF CONTENTS
- 1. Eligibility and Account Registration and Privacy
- 2. Unauthorised use of the Account
- 3. Payment, Cancellation and Refunds
- 4. Compliance
- 5. User Content
- 6. User Content Licensing, Preservation, and Publicity
- 7. Representations
- 8. Content's Restrictions and Assessment
- 9. Partner's Content
- 10. Forbidden Content
- 11. Forbidden Activities
- 12. Compliance Under the Bolstering Online Transparency Act
- 13. Intellectual Property Rights
- 14. Purchases and Warranties
- 15. Limitation of Liability and Indemnity
- 16. Term & Termination
- 17. Notice
- 18. Governing Law and Jurisdiction
- 19. Class Action Waiver
- 20. Amendments
- 21. Force Majeure
- 22. Forbearance
- 23. Severability
- 24. Third-Party Beneficiaries
- 25. Miscellaneous
1.1. In order to use the Services You must be, and You hereby represent and warrant to be, of legal age and competence. By using the Services on behalf of any third party, You are herein representing to be an authorised representative of that third party and that Your use of the Services constitutes that third-party’s acceptance of these Terms. If You have been previously prohibited from accessing the Services by Us, Your access to the Services shall be considered unauthorized.
1.3. In order to create an account to use the Services You shall be requested, during the registration process, to provide an username and password. The password You provide, which must be secure and unique, will be required to further access Your account and the Services. You are the sole responsible for protecting and safeguarding the provided username and password from unwarranted disclosure or unauthorised use and You will be held fully liable for all activities that occur under Your username and password.
1.4. Subject to Your compliance with these Terms, We grant You a limited, non-exclusive, non-sublicensable, non-transferable, and revocable, right to access and use the Services for Your own personal benefit, provided that in a strictly non-commercial manner.
2.1. You undertake to keep Us informed, at all times, of any event of unauthorised use of Your username or password, whether suspected or material, or otherwise breach of security related to Your password or the Services. We shall not be held liable for any loss or damage resulting from Your failure to protect and safeguard Your account from unauthorised or unwarranted access or use, or for Your failure to maintain the password confidential and secure. By completing Your account registration, You agree that You shall prevent others from using Your account and to be held fully responsible for all activities performed under Your username and password. Any and all communications We receive under Your account shall be deemed to have been made by You. Under no circumstance We shall be held liable for any losses, damages, liabilities, expenses or attorneys’ fees that You may incur as a result of someone else using Your username or password, either with or without Your knowledge, and regardless of whether We should expect such unauthorised use. You shall be held liable for losses, damages, liabilities, expenses and attorneys’ fees incurred by Us or an eventual third party due to someone else using Your account.
3.1. To the extent that You make a purchase of products offered by Us on the Services, such purchase will be subject to separate terms of sale presented on the website or online service where the purchase is made.
3.2. We may offer products and services for purchase on the Website (hereinafter, referred to as “Purchase”). You may choose to pay for those services and products with Your credit card or debit card (hereinafter, referred to as “Payment Method”), which will be processed by a third-party processor. Once You have made a Purchase, You authorise Us to charge Your chosen Payment Method. If payment is not received by Us from Your chosen Payment Method, You agree to promptly pay all due amounts upon demand by Us. If the recurring payment was refused, We shall have the right to charge You a 3$ convenience fee.
3.3. You may cancel Your subscriptions via the settings option under Your profile or by contacting Our Customer Support Service via the FAQ on this Website (https://www.passiondesire.com/help).
3.4. All charges for purchases are non-refundable, and there are no refunds for partially used periods. Any eventual refund will be made at Our discretion only or if We are obliged to do so by the applicable laws.
5.1. Occasionally, whether publicly or privately, You may submit, communicate, upload, publish, link to, transmit, record, display or otherwise make available through the Services, any information and content including, without limitation, text, videos, photographs, recordings, reviews, messages, ideas, comments and other type of content (hereinafter, referred to as “User Content”).
5.2. You acknowledge that We are a passive conduit for User Content, therefore, You are the sole responsible for all and any User Content posted by You. You acknowledge and agree that all User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person from whom the User Content originated.
5.3. We hereby disclaim, and undertake no responsibility or liability for, any obligation to prevent or identify intellectual property right infringements or to review, assess, monitor or otherwise oversee the User Content submitted, uploaded, distributed or retrieved in connection with use of the Services for possible (i) unlawful, inappropriate or unpermitted use; (ii) infringement or enforcing Your rights or third-party rights with respect to Content; or (iii) non-compliance with governmental laws or regulations.
5.4. We further disclaim any guarantee as to the assurance that any User Content will be to Your satisfaction. You acknowledge and agree that, by using the Services (i) You may be exposed to User Content that may be considered indecent, offensive or objectionable; and (ii) Others’ User Content may contain errors or omissions. To this regard You further acknowledge and agree that We are under no obligation to, nor do We, screen or review any User Content posted or published through the Services, for any material which may be deemed offensive, indecent, objectionable, or for possible libels, falsehoods, defamatory materials, errors or omissions contained therein. Under no circumstances We shall be deemed liable, in any way, for any User Content, including, but not limited to, for any defamation, falsehoods, errors or omissions in any such User Content, or for any loss or damage of any kind incurred as a result of the use or publication of any such User Content posted, delivered or otherwise transmitted through the Services.
5.5. You hereby promise to keep Us harmless and indemnified, at all times, against any damages, losses or otherwise liabilities arising out or in connection with User Content pursuant to the foregoing, and You further undertake to keep Us informed, at all times, about any infringement or suspected infringement of intellectual property rights You may become aware of.
6.1. Upon posting any User Content on or through the Services, You grant Us a world-wide, perpetual, irrevocable, royalty-free, non-exclusive, and sublicensable, license to use and process such User Content, whether whole or partially, under any current or future format or medium, under strict compliance with the applicable general data protection regulation and pursuant to the Company’s corporate activities including, without limitation, to: (i) use, exhibit, broadcast, publish, publicly display, publicly perform, distribute, copy, store, reproduce, promote and store the User Content on, by means of, or otherwise in connection with the Services; (ii) secure, encode, host, cache, route, reformat, modify, edit, adapt, translate, analyze and develop algorithms and reports based on access to and use of the User Content; (iii) develop derivative works from, sell, lease, transmit, disassemble, utilize and process the User Content to test and advance the Company’s proprietary technologies and processes.
6.2. You further expressly acknowledge and agree that We may preserve and disclose User Content, should it be required by law or, in accordance with these Terms, as it may be reasonably construed as necessary to: (i) respond to claims that any User Content violates the rights of third parties; (ii) protect Our rights, property, or personal safety of Our affiliates and the public; (iii) comply with legal process; or (iv) enforce these Terms;
6.3. You further understand and agree that the technical processing and transmission of the Services, including Your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
7.1. By posting any User Content on or through the Services, You represent to be solely liable for: (i) complying with all laws, rules and applicable regulations; (ii) any Forbidden Content; (iii) abiding by all the Terms hereof; (iv) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artists, actors, directors, performers, writers, producers, or any other individuals, in connection with the User Content; (v) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the User Content, if any; (vi) any payments pertaining to labor unions and guilds, to the extent required under applicable law or collective bargaining agreements or otherwise, as the case may be, in connection with posting and publicizing the User Content; and (vii) obtaining public performance licenses from public performance rights collection organizations, if applicable.
7.2. You also promise to own or otherwise control all rights to any User Content that You post on or through the Services. You agree that You will indemnify, defend, and hold Us harmless for all claims derived from the User Content that You post. We reserve the right, at Our own expense, to assume the exclusive defense and control of such disputes and, in any event, You will cooperate with Us in asserting any available defenses.
8.1. Nothing under these Terms shall be construed as to grant You, either by implication, estoppel, or otherwise, any license or right to use any User Content accessed via the Services, without the prior written consent of that User Content’s owner. Any and all rights not explicitly granted herein are reserved to their owner or otherwise to the holder of their legal title. Under no circumstances, We may be held liable for the: (i) selection, acquisition, distribution and licensing of User Content; or (ii) acquisition and payment of any third-party licenses, rights clearances or other permissions needed from unions, guilds or other entities to use the User Content in the manner authorised by You. You are the only responsible for maintaining copies of the User Content and shall take precautionary measures to backup and protect it. We are under no obligation to provide You, or otherwise any third party, with backup or archival copies of any User Content posted on or through the Services.
8.2. You further acknowledge and agree that the rights of access to others’ User Content, granted to You on or through the Services, are strictly limited to the terms of those rights that You shall have obtained in connection with the receipt of the User Content itself. Except as explicitly permitted, You may not copy, reproduce, modify, publish, transmit, transfer or sell, maintain, retain, create derivative works from, distribute or re-distribute, perform, link, display or in any way exploit any User Content to which You have gained access through the Services, including, without limitation, by incorporating data and or User Content from the Services into any e-mail, search, catalogue, directory, or other “white pages” products or service, whether browser-based, based on proprietary client-site applications, web-based, or otherwise. You understand, agree and acknowledge that engaging in any of the aforementioned conduct may.
8.3. Provided that duly anonymised, all information provided to Us by e-mail or other mediums, including, without limitation, feedbacks, answers, questions, comments, suggestions, plans, ideas or the like, shall be, to the extent permitted by law, deemed non-confidential. We assume no obligation to, under such circumstances, protect any information from disclosure. Our receipt of such information shall in no way prevent the purchase, manufacture or use of similar products, services, plans and ideas by Us for any purpose whatsoever, and We reserve the right to freely reproduce, use, disclose and distribute the information to third parties, to the greatest extent permitted by law.
9.1. By using the Services You agree to be exposed to, interact or otherwise be provided with (i) information and content provided by third parties; (ii) links to third-party websites or resources, such as sellers of goods and services; and (iii) third-party products and services for sale directly to You (hereinafter, collectively referred to as “Partners Content”). Under any such circumstances, such Partners Content may contain affiliate marketing links, encoded by third-party partners, through which actions executed by You, i.e. clicking on or making final purchases via that Partners Content, may generate revenue to Us as a monetary commission that We may earn. You further acknowledge and consign to have such Partners Contents utilising cookies for the purpose of assessing Your use of the Services.
9.2. Notwithstanding the foregoing, under no circumstance We may be held responsible for the availability of such Partners Content and We do not endorse nor may We be held liable or undertake any responsibility for (i) any content, advertising, products, or other materials on or available from Partners Content, (ii) any errors or omissions in Partners Contents, or (iii) any information handling practices or other business practices of the operators of Partners Contents. You further acknowledge and agree that We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Partners Content. Your interactions with Partners Content will be governed by the relevant third-parties’ own terms of service and policies.
9.3. You acknowledge and understand that You must not use the Services in connection with any business, media purposes, or otherwise commercial endeavours (hereinafter, referred to as “Commercial Use” or use by “Commercial Users”, as applicable), under penalty of immediate termination of these Terms and further legal actions.
9.4. For the avoidance of doubt, any use of the Services other than personal and consistent with these Terms, including use by competitors and the media, shall be construed as Commercial Use by Commercial Users, deemed as unauthorised.
10.1. Subject to Your compliance with these Terms, We grant You a limited, non-exclusive, non-sublicensable, non-transferable, and revocable, right to access and use the Services for Your own personal benefit, provided that in a strictly non-commercial manner.
11.2. We reserve the right, at Our sole and absolute discretion, to remove any User Content, block access to the Services, and cancel the account of any user deemed in violation of what's below provided.
10.3. Forbidden Content. You hereby undertake to refrain from using the Services to upload, download, post, e-mail, transmit, transfer, distribute, display or link to, any User Content that:
(a) May reasonably be construed as violent, vulgar, obscene, pornographic, hateful or racially, sexually, ethnically or otherwise objectionable by, or as intended to harass, abuse, or threaten any, person;
(b) May degrade others on the basis of gender, race, class, ethnicity, national origin, religion, sexuality, disability or on other likewise morally and ethically reprehensible discrimination criteria;
(c) Is unlawful, harmful, tortious, defamatory, libeluous, or invasive to or of other’s privacy or publicity rights;
(d) Exploits images or discloses personally identifiable information of children under eighteen (18) years of age or otherwise harms minors in any way;
(e) Contains (i) advertising, offers for sale, or sells any item, whether prohibited or not from advertising or selling by any applicable local, state, national, or international law, specially firearms, explosives, or weapons, alcoholic beverages, tobacco products for human consumption including, without limitation, cigarettes and cigars, items that are indecent or obscene, that are hateful or racially, sexually, ethnically or otherwise objectionable, that contain child pornography, that are otherwise pornographic in nature, any controlled substances or pharmaceuticals, any dangerous items, any items that violate or infringe the rights of other user or otherwise third parties, any items that you do not have the legal right to sell, and any items that, on doing so through the Services, would cause Us to violate any law;
(f) Advocates or promotes illegal activity, discusses any illegal activity, irrespective of intent, or that provides instructions for an illegal activity (in whichever case, as determined by Us, at Our sole discretion);
(g) Contains any malicious or invasive software, device, instructions, computer code, files, programs or other content or feature, including, without limitation, any time bomb, virus, software lock, worm, self-destruction, drop-device, malicious logic, Trojan horse, trap door, “disabling,” “lock out,” “metering” device or any form of malicious code designed to interrupt, destroy or limit the functionality of any computer software, hardware, or telecommunications equipment, or that could otherwise diminish the quality of, interfere with the performance of, or impair the functionality of, the Services;
(h) Could disable, overburden, or impair the proper working of the Services;
(i) Impedes or otherwise prohibits communication or disrupts user discussion;
(j) Infringes, or otherwise may contribute to inducing or facilitating the infringement of, third-parties’ intellectual property rights;
(k) Contains any trade secrets or other confidential or proprietary information, or any material that You do not have a right to make available under any law or under contractual or fiduciary relationships, including, but not limited to, inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements;
(l) Falsely states or otherwise misrepresents Your affiliation with a person or entity, or facilitates or enables You to impersonate any person or entity in a manner that does not constitute parody;
(m) May, directly or indirectly, be used as or for “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation in violation of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”);
(n) Is in any way related to any raffle, sweepstakes, contest or game requiring a fee by participants;
(o) Violates the law or encourages conduct that would constitute a criminal offense or give rise to civil liability;
(p) Violates, or otherwise facilitates violation of, these Terms or any guidelines or Policies posted by Us;
(q) Interferes with the use and enjoyment of the Services by any other person;
(r) Child pornography, incest, bestiality, rape, and non-consensual mutilation, etc...
11.1. Forbidden Activities. The Services may not be used to, whether intentionally or unintentionally, violate any applicable local, state, national or international law, including, without limitation, any rules of any governmental authority or agency and their regulations with force of law. Use of the Services for any illegal purpose, or any other purpose not expressly permitted in these Terms, is strictly forbidden. Such forbidden uses include, without limitation, the non-exhaustive list of activities hereunder, according to which You may not:
(a) Sell, rent, lease, sublicense or otherwise transfer or distribute the Services to third parties;
(b) Modify, translate, reverse engineer, decompile, or disassemble the Services or alter any accompanying documentation;
(c) Create derivative works based upon the Services;
(d) Attempt to or otherwise gain unauthorised access to others’ accounts;
(e) Commercially use the Services, including, without limitation, for benchmarking or to compile information for a product or service;
(f) Collect or store personally identifiable information about other user or otherwise third parties for unwarranted or unlawful purposes;
(g) Partake in any activities that constitute or aid in software piracy, including, but not limited to, making available tools that can be used for no purpose other than for “cracking” software or other copyrighted User Content;
(h) Copy, download (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), modify, distribute, post, transmit, display, perform, reproduce, broadcast, duplicate, publish, republish, upload, license, reverse engineer, create derivative works from, or offer for sale any content or other information contained on or obtained from or through the Services, by any means except as provided for in these Terms or with Our prior written consent;
(i) Scrape, access, monitor, index, frame, link, or copy any content or information on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or any other method of access other than manually accessing the user-available portions of the Services through a browser or accessing the Services through any approved API;
(j) Violate the restrictions in any robot exclusion protocol of the Services, if any, or bypass or circumvent other measures employed to prevent or limit access to the Services;
(k) Interfere with or disrupt, or attempt to interfere with or disrupt, the Services or our servers and networks connected thereto, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
(l) Use third-party’s intellectual property, to which You do not hold legal title or right;
(m) Alter, destroy or otherwise remove any copyright, trademark or other proprietary notices, images or logos displayed, provided on or embedded within the Services;
(n) Through misrepresentation or otherwise, solicit personal or sensitive information from other users, including, without limitation, address, credit card or financial account information, or passwords;
(o) Impersonate any person or entity, including, but not limited to, the Company, its officials or employees, or falsely state or otherwise misrepresent Your affiliation with a person or entity, or make false or misleading indications of origin or fact, employ misleading e-mail addresses or falsify information in the header, footer, return path, or any part of any communication, including e-mails, transmitted through the Services;
(p) Frame, inline link, or similarly display the Services or any portion of the Services;
(q) Restrict, inhibit, or otherwise interfere with, the use and enjoyment of the Services by any other person;
(r) Child pornography, incest, bestiality, rape, and non-consensual mutilation etc...
12.1. Please, note that while using Our Services You may sometimes interact with automated online accounts and/or fictitious profiles, which its interactions have been generated by or with the assistance of automated programs or scripts, or by real persons that have been contracted or employed by Us (hereinafter, referred to as “Bots”, "Automated Profiles” or “Fictitious profiles”). These Automated Profiles are being used within the Services for enhancing Your amusement experience and providing You with entertaining services, which helps You to better intercommunicate with another user who is a real human being.
12.2. Bear in mind that none of the content or actions made by Automated Profiles are the result of, or arise in connection with, a natural person’s profile or otherwise User Content. None of the dialogues with the Automated Profiles really exist and have been generated exclusively by programming.
12.3. In compliance with the Bolstering Online Transparency Act (when applicable) or any other equivalent regulation, We added tags with the nickname "Emerald Hottie" to all the existent Automated Profiles, so they are easily identifiable for You. This tag will always be displayed on the top bottom right of the user’s identification information.
13.1. We own all rights, titles and interests in and to the Services, as well as any content derived in whole or in part from material supplied by Us and Our partners, as well as other sources, including, without limitation, associated intellectual property rights, and are protected under the governing laws, as well as under international treaty provisions, trademarks, service marks copyright, trade secret, patent and other applicable domestic and international laws. You acknowledge that the Services have been developed, compiled, prepared, revised, selected, and arranged by Us and others through the application of methods and standards of judgment, developed and applied through the expenditure of substantial time, effort, and money and that any and all intellectual property and trademark rights stemming therefrom are owned by, and any goodwill associated with the use of such shall inure to the benefit of, the Company. You agree to protect the Company’s and other relevant third-parties’ proprietary rights in the Services during and after the term of these Terms and to comply with all reasonable written requests made by Us, Our suppliers and licensors of content (collectively referred to herein as “Suppliers”), or otherwise to protect theirs and Ours contractual, statutory, and common law rights in the Services. In no event shall the Services be deemed sold or assigned to You. Any and all rights not expressly granted by Us are reserved to the Company and its subsidiaries or Suppliers, as the case may be. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. You agree to keep Us informed, at all times, immediately upon becoming aware of any unauthorised access or use of the Services by any individual or entity or of any claim that the Services infringe upon any copyright, trademark, or other contractual, statutory, or common law rights. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including, without limitation rights in and to all applications and registrations relating to the Services shall, as between You and Us at all times be and remain the sole and exclusive property of the Company.
13.2. You may not use any of our trademarks, trade names, service marks, copyrights, or logos in any manner which creates the impression that such items belong to or are associated with You or, except as otherwise provided herein, are used with our consent, and You acknowledge that You have no ownership rights in or to any such items.
13.3. We are not required to accept unsolicited feedback. Should You provide any feedback about the Services to Us, We shall own all rights in and to such feedback and any derivative technologies and compilations based on or developed through or by using such feedback. You hereby undertake to take all reasonably necessary actions to affect the Company’s rights in and to such effect hereof.
14.1. To the extent that You make a purchase of the products offered by Us on the Services, such purchase will be subject to separate terms of sale presented on the website or online service where the purchase is made.
14.2. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such advertiser. You agree that We shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on or through the Services.
14.3. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- The warranties, if any, applicable to each product eventually advertised or otherwise made available through the Services are provided by the manufacturer of such product. Some products are manufactured by third parties.
- Your use of the Services is at Your sole risk. We make no representations, warranties, or guarantees of the services’ suitability for Your purposes or the content You may retrieve by or through the Services, nor that the access to and use of the Services shall be secure, uninterrupted or error-free, or that the Services shall function properly in combination with any third-party technology, hardware, software, systems or data. The Services and any content retrieved by or through the Services are provided “as is” and all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, title, fitness for a particular purpose, or non-infringement are hereby disclaimed to the maximum extent permitted by applicable law. The Services may be subject to interruption, limitations, delays, and other problems inherent in the use of internet applications and electronic communications and We are not responsible for any such delays, mis-delivery, untimely delivery, delivery failures, or any other damage resulting from events beyond Our reasonable control. You further understand and agree that any content or other material downloaded, obtained or otherwise accessed through the use of the Services is done at Your own discretion and risk and that You are solely responsible for any damages to Your computer system, mobile device, technology or loss of data that results in the download of such content or other related material.
- No advice or information, whether oral or written, obtained by You from Us or through or from the Services shall create any warranty.
- We make no representation, warranty, guarantee or promise that the products or services will meet Your requirements or achieve any particular results, including employment opportunities.
- We will not be responsible for any third-party content on the Services, any links to or third-party websites. We do not vet or verify users that identify themselves as experts on particular topics through the Services, and You further agree not to hold Us responsible for reliance on such experts should You not achieve the results You expect in relying on such experts.
- You further warrant to currently be, and undertake to remain, in compliance with all applicable laws and regulations, including, without limitation, laws and regulations governing privacy and data protection.
15.1. We hereby disclaim any liability, and You expressly understand and agree that, under no circumstances may the Company, or its subsidiaries, be deemed liable for Your or any users’ use or misuse of or reliance on the Services or any related content thereof. To the extent permitted by law, in no event the Company shall be deemed liable for any consequential, incidental, direct, indirect, special, punitive, or other damages whatsoever, including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other loss of pecuniary nature, arising out of or in connection with these Terms or the use of or inability to access or use the Services, irrespective of the Company’s eventual prior knowledge of the possibility of such damages, whether in action, contract, tort, strict liability, violation of statute or otherwise. The Company shall not be held liable for the cost of replacement products, loss of revenue or loss of good will.
15.2. Without prejudice to the foregoing, Your exclusive remedy and the Company’s total aggregate liability relating to, arising out of, in connection with, or incidental to the Services or these Terms, regardless of cause or reason, shall be restricted to the actual direct damages incurred by You, up to the greater of the amounts (i) either paid by You directly to the Company in consideration for use of the Services or (ii) corresponding to the Company’s net revenue accrued directly in connection with Your use of the Services through the month immediately preceding the indemnification event. The limitation set forth herein shall apply on all actions or claims, in aggregate, irrespective of cause of action. Notwithstanding, the provided herein shall not be construed as or operate a waiver of, or otherwise limit, the Company’s ability to obtain injunctive or other equitable relief for breach of these Terms.
15.3. Such limitation shall also apply with respect to damages incurred by reason of other services or goods received through or advertised on the Services or received through any links provided in the Services, as well as by reason of any information or advice received through or advertised on the Services or received through any links provided in or through the Services. We do not warrant, endorse, guarantee or assume the responsibility for any product or service advertised or offered by a third party through the Services or any website featured or linked to or through the Services, and We will not be a party to, or in any way be responsible for monitoring, any transaction between You and third-party providers of products or services. We may not be deemed liable for the offensive or illegal conduct of any third party. You voluntarily assume the risk of harm or damage from the foregoing. The foregoing limitations shall apply regardless of eventual failure of a remedy in its essential purpose and to the fullest extent permitted by law.
15.4. If You are a California resident, You hereby waive California Civil Code §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.” This release includes the criminal acts of others.
15.5. Indemnity. You agree to indemnify, defend, keep and hold the Company, its officers, directors, employees, members, shareholders, and representatives (and all successors and assigns of any of the foregoing), harmless and indemnified from and against any claim or demand, including, without limitation, attorneys’ fees, litigation expenses, burden of loss, and any disbursements made by any third party in connection with or arising out of Your use of the Services, Your connection to the Services, Your violation of these Terms or the Policies, Your violation of any applicable law, including, without limitation, any claims, lawsuits or proceeding for libel, slander, copyright, and trademark violation, Your submission, posting, or transmission of User Content to the Services, and Your violation of any rights of other persons. We reserve the right, at Our own expense, to assume the exclusive defense and control of such disputes and, in any event, You undertake to cooperate with Us in asserting any available defenses.
16.1. These Terms are made effective as of the date of Your acceptance, pursuant the established throughout the Recitals herein-above, and shall remain so until terminated by either of the Parties in accordance with the provided hereunder.
16.2. We may immediately terminate or suspend Your access to the Services:
(a) should You fail to comply with any provision under these Terms or the Policies;
(b) for any conduct that We may reasonably deem to be directly or indirectly harmful to others;
(c) for any conduct that We may reasonably deem to be a violation of third-party rights, such as copyright, trademark and rights of privacy and publicity or a violation under the Forbidden Content and Activities Sections hereto;
(d) interference with the proper functionality of the Services, in whole or in part; and
(e) for any conduct that violates any local, state, federal, or foreign laws or regulations.
16.3. Without prejudice to the foregoing, We may, in Our sole and absolute discretion, deny You access to all or part of the Services, at any given time, regardless of reason or notice to You, which may result from, however not limited to, (i) requests by law enforcement or government agencies; (ii) discontinuance or material modification of the Services (or any part thereof); (iii) unexpected technical or security issues or problems; (iv) extended periods of inactivity; (v) activities related to protecting the rights, property or safety of the users and the public; or (vi) if You provide any information, including registration information, that is false, inaccurate, out-of-date, or incomplete.
16.4. Should We terminate Your right to access the Services, without reason or cause, We shall fulfil Our obligations to You related to any order outstanding at the time of termination. Otherwise, should We terminate Your right to access the Services on any of the grounds listed herein-above, these Terms and all rights You have to access the Services will immediately cease.
16.5. You may terminate Your use of the Services by means of the proper channel available for that purpose under Your account’s administration panel. Should You terminate Your account, You shall remain liable under these Terms for any purchase made prior to such termination.
16.6. Without prejudice to any of the above, unless explicitly stated, all covenants, agreements, representations, warranties and undertakings that are reasonable required to, shall survive the termination of Your access to the Services, however so arising, until their complete or otherwise sufficient fulfilment, or upon due and lawful release of such.
17.1. All notices, requests, demands and other communications that You may send to Flaming Head Limited under these Terms shall be in writing and shall be deemed to have been duly given when delivered personally, telecopied (with confirmation), mailed by registered or certified mail (return receipt requested) or delivered by an express courier (with confirmation) at the following addresses:
Antoniou Pavlidi 29, 2323 Nicosia, Cyprus
17.2. Any notice request, demand or other communication to be sent by Us to You may be done so by means of e-mail (at the last address notified by You to Us), or by posting a notice through the Services or on the Webite, and shall be deemed duly served upon dispatch.
18.1. These Terms are governed by, construed and interpreted in accordance with the laws of Cyprus, without regard to its conflict-of-law provisions. Any action seeking legal or equitable relief arising out of or relating to these Terms shall be brought only in the competent courts of the jurisdiction of Cyprus.
19.1. You agree that You may bring claims against Us only in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.
19.2. The foregoing notwithstanding, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorised use of intellectual property in the courts of the applicable jurisdiction or where is set forth by the applicable laws to protect its intellectual property rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
19.3. This Class Action Waiver section shall survive any termination of Your use of the Services.
20.1. We reserve the right to, at Our sole discretion, update, amend or otherwise affect any changes to these Terms, the Policies and the Services, from time to time, without notice in advance (to the extent permissible at law), including, however not limited to, features, specifications, capabilities, functions, licensing terms and general availability. Nonetheless, We undertake to keep You duly informed in the event of any such changes, by the means provided in the Notice Section. By continuing to sign in or use the Services, or any related content, on any time following an amendment, update or otherwise changes hereof, regardless of any objections or reservations You may have raised, whether or not timely, written or otherwise, You explicitly agree and grant Your full and unreserved consent to become subjected to and bound by those alterations, waiving any right to enjoy or claim, judicially or otherwise, any compensation or indemnification arising therefrom or in connection thereto. Other than as provided in the Class Action Waiver section of these Terms, any changes hereto shall take effect immediately upon posted at the website and will apply on a going-forward basis, unless otherwise instructed in the respective notification to You. If You oppose to, reject or have otherwise any reservations whatsoever regarding an eventual alteration under this Section, You undertake herein to refrain from accessing, using or signing up to use the Services, as well as from further uploading, posting or otherwise submitting any User Content (as defined herein-below) to or through the Services, on any time following that alteration’s effective date. Any of the foregoing uses under such circumstances shall be construed as an unauthoriased use of the Services, deemed strictly prohibited in accordance to the Terms hereof.
20.2. In the event You continue to or otherwise resume the use of the Services after raising an objection or reservation, however prior to receiving Our written reply, You shall then be deemed to have expressly agreed with and granted Your full and unconstrained consent to becoming subject to and bound by those alterations, having waived any right to enjoy or claim, judicially or otherwise, any compensation or indemnification thereof, in accordance with the provided herein-above.
20.3. Additional terms may apply to Your use of the Services. We will provide any such additional terms to You or post them on the Services in connection with the features to which they may apply; notwithstanding, all such additional terms are incorporated herein by reference.
21.1. Under no circumstances We, Our licensor, or Our suppliers, may be held liable for failure to perform, or delay in performing, any of the obligations contract under these Terms, to the extent that such failure or delay is due to an event of force majeure – namely an event arising from cause or causes beyond our reasonable control, which by its nature could not have been foreseen or if it could have been foreseen, was unavoidable, including, without limitation, acts of God, act of governmental sovereignty, war or armed hostilities, fire, flood, explosion, civil commotion, industrial dispute of a third party, act of terrorism, revolution, blockade, embargo, strike, lock-out, sit-in, industrial or trade dispute, adverse weather, disease, accident to or breakdown of facilities, shortage of any material, labor, transport, electricity or other supply, or regulatory intervention.
22.1. No failure, whether by Us or by You, to enforce any right or provision under these Terms shall be construed as or constitute a waiver of such right or provision. No waiver under these Terms shall become binding unless made in writing. No waiver under these Terms shall be deemed a further or continuing waiver of such term or any other term.
23.1. If any provision under these Terms is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under any circumstances.
24.1. You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. You may not transfer or assign these Terms or any rights or obligations hereto, whether directly or indirectly, by operation of law or otherwise, without the Company’s prior written consent. We reserve the right to unrestrictedly assign, sublicense, delegate or otherwise transfer any of the rights or obligations under these Terms, whether whole or partially, to any third party, regardless of Your prior written consent.
25.1. These Terms (and all terms and conditions incorporated herein) constitute the entire agreement between You and the Company with respect to the subject matter hereof and supersede any prior agreements between You and the Company with respect to that subject matter. No agency, partnership, joint venture or employee-employer relationship is intended or created by these Terms. You agree that any agreements made by and between You and the Company in electronic form are as legally binding as if made in physical written form. These Terms will not be construed against the drafter. Unless the express context otherwise requires (i) the words “hereof”, “herein” and “hereunder” and words of similar import, when used in these Terms, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii) The terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (iii) References herein to a specific Section, Subsection, Annex, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Annexes, Schedules and Exhibits of this Agreement; (iv) Wherever the word “include”, “includes” or “including” is used in these Terms, it shall be deemed to be followed by the words “without limitation”; (v) Wherever the word “promptly” or “as promptly as practicable” is used in these Terms, it shall mean without undue delay; (vi) References herein to any gender include each other gender; and (vii) Heading references in this Agreement and the table of contents are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof.
Last Updated: 2022-07-11 13:26:56