This agreement (the “Agreement”) is made by and between MatureSensual and the person or entity accepting this Agreement (“Advertiser”) as of the date set on which such acceptance occurs.
W I T N E S S E T H:
WHEREAS, MatureSensual may be or is engaged in, among other things, the publication of adult entertainer information, advertisements, and content on one or more owned or not owned, or affiliated, via contract or otherwise, websites, portals, networks, and other paper and electronic outlets including, without limitation, www.maturesensual.com;
WHEREAS, if Advertiser is an individual, Advertiser wishes to promote and advertise Advertiser’s own website, Advertiser’s own social networking site(s), if permitted and applicable, or personal services by having photographs, descriptions, text and other content and information relating to Advertiser or such website or personal services posted on one or more of the outlets on www.maturesensual.com and elsewhere, whether through the classified listings, banners, and/or links; and
WHEREAS, if Advertiser is a third party such as an Agency, Advertiser operates an adult entertainment service (or represents adult entertainers) and desires to submit photographs, descriptions, text and other content and information about the adult entertainers whom Agency employs or represents for posting on one or more of the outlets on www.maturesensual.com and elsewhere, whether through the classified listings, banners, and/or links; and
WHEREAS, subject to Advertiser’s strict compliance with the terms and conditions of this Agreement, Advertiser may submit and post Advertiser’s supplied images and content on www.maturesensual.com;
NOW THEREFORE, in consideration of the mutual promises and agreements hereunder contained and for good and valuable consideration, the adequacy and sufficiency of which is acknowledged, the parties, each intending to be legally bound hereby, do promise and agree as follows:
Important! This Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001, et seq. (E-SIGN Act). You manifest your agreement to this Agreement by any act demonstrating your assent thereto, including typing your name or initials into a signature line provided by MatureSensual, and/or clicking any button containing the words “I agree” or similar syntax. You may submit a paper copy of this transaction and print this form for your personal records. You have the right to withdraw your consent to use the E-Sign Act by emailing us at firstname.lastname@example.org. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a simple browser program such as Internet Explorer and a computer.
1. Posting of Content. Subject to payment of all fees and Advertiser’s strict compliance with MatureSensual’s policies and procedures and this Agreement, Advertiser may submit and post its Content (which means any of its content, materials, information, visual images, photos, video, graphics, text material, biographical and contact information) on one or more of the outlets on www.maturesensual.com strictly in accordance with the following:
1.1 Advertiser warrants and agrees that all Content submitted and/or posted by Advertiser shall have been produced in accordance with all applicable provisions of United States law, including but not limited to Title 18, U.S.C. §2256 and 2257 et seq. and 28 CFR Part 75 et seq., as amended, (“Section 2257”) as well as all other applicable Federal, State, local, and foreign laws and regulations.
1.2 Advertiser further warrants and agrees that all Content submitted and/or posted is exempt from Section 2257 obligations, unless such Content is submitted for inclusion in the specific section on www.maturesensual.com reserved for Section 2257 Content. If such content is deemed not to be exempt from Section 2257, then Advertiser is solely responsible for the keeping of all records required by Section 2257 or as requested by MatureSensual. If demanded by MatureSensual, Advertiser shall promptly provide MatureSensual with the full legal name of its Records Custodian, and a copy of any and all age records required by Section 2257, relating to content posted on www.maturesensual.com . In addition, if Advertiser resides in a jurisdiction other than the United States (the “Foreign Jurisdiction”), or is submitting Content from a Foreign Jurisdiction, Advertiser shall keep all records as may be required under the laws of such Foreign Jurisdiction, in addition to any other obligations imposed hereunder.
1.3 Advertiser bears full and sole responsibility for the production, publication, and posting of the Content. Advertiser shall notify MatureSensual within one business day of first posting of any corrections, changes or deletions necessary thereto. No refunds or credits (which include credits, adjustments, coupons, and the like) are provided by MatureSensual and none should be expected by Advertiser.
(a) However, to the extent MatureSensual does provide a refund, MatureSensual , at its sole discretion, will either (i) issue a credit back to any credit card used to pay for the advertising service; or (ii) issue a refund check which will be mailed to the Advertiser of record at such Advertiser’s address on record. Such refund check must be presented for payment to a financial institution within ninety (90) days of issuance, or such check (and the refund amount) will be cancelled and forfeited and no replacement check will be provided. To the extent MatureSensual does provide or post a credit to Advertiser’s account or has provided a credit in the past, in each case, for any reason whatsoever, such credit must be used no later than 1) one hundred eighty (180) days of being posted to the Advertiser’s account; 2) prior to termination of this Agreement; or one hundred eighty (180) days from the Effective Date of this Agreement, whichever occurs last. Otherwise, the credit will be cancelled and forfeited and no replacement will be provided. Any overpayment will be posted as a credit and handled in accordance with this paragraph.
(b) Advertiser bears full and sole responsibility for ensuring that each payment is appropriately and adequately marked such that MatureSensual is able to apply such payment to Advertiser’s account and advertisement. Advertiser must contact MatureSensual promptly if Advertiser believes that such Advertiser’s payment has not been applied correctly. If MatureSensual is unable to apply a payment within ninety (90) days after its receipt, such payment is forfeited, becomes the property of MatureSensual, and will not be refunded.
(c) If the parties agree that Advertiser will pay for advertisements based on a variable fee model such as impressions, clicks, exposure, conversions, and the like (e.g., banner ads), Advertiser must pay MatureSensual a non-refundable retainer fee in advance. At the end of a reporting period, as determined by MatureSensual in its sole discretion, MatureSensual will submit to Advertiser a report documenting the calculation of the advertising fee and such fee will be deducted from the retainer amount. MatureSensual ’s records, files, statistics, and reports will be the only basis for the calculation of the advertising fee, and are not subject to audit. Any questions concerning such calculation must be submitted within five (5) business days of MatureSensual ‘s submitting the report to Advertiser or such fee calculation will be deemed final. The parties acknowledge and agree that a variable fee model as described above is a common method for calculating an advertising fee between independent internet businesses and does not mean and does not imply that MatureSensual owns, controls, or has any influence over Advertiser’s business. Advertiser has sole and complete ownership and control over its business.
(d) Advertiser acknowledges and agrees that Advertiser’s financial institution or vendor may impose a fee on Advertiser as a result of Advertiser paying its advertising or service fees to MatureSensual using such financial institution or vendor’s credit card or other payment method. Advertiser is advised to understand such fees in advance as Advertiser is solely responsible for payment of such fees. Additionally, Advertiser further agrees that MatureSensual’s stated prices will be listed in either dollar and cents (e.g. $10.99) or the cents will be rounded to the nearest dollar amount. However, in the event that a price or discount is rounded to the nearest dollar; such rounding will always be done to the benefit of the Advertiser.
1.4 In addition to being soley responsible and liable for all Content submitted to MatureSensual, Advertiser is also solely liable for any content accessible via any link Advertiser includes as part of its Content, and for any technical malfunctions, errors, or other problems caused by such link. Advertiser specifically indemnifies and holds MatureSensual (which means MatureSensual, its owners, officers and directors, successors, assigns, affiliates, agents and licensees, and, in all cases, their respective owners, officers and directors, successors, assigns, affiliates, agents, and licensees) harmless for any claims, debts or allegations relating to www.maturesensual.com by the Advertiser.
1.5 Advertiser is solely responsible for any Content submitted to MatureSensual , by Advertiser or on Advertiser’s behalf by third parties (such as photographers or other delegates of Advertiser) and all provisions of this Agreement shall apply to such Content. Advertiser warrants and represents that it owns and retains all necessary rights to display all Content submitted to MatureSensual in accordance with this Agreement, including, without limitation, all necessary model releases, copyright licenses, assignments, publicity rights and the like. Advertiser specifically indemnifies and holds MatureSensual harmless for any claims, debts or allegations relating to any Content it submits and/or posts pursuant to this Agreement.
1.6 Advertiser may be provided online access to its account. Advertiser acknowledges and agrees that such account may be used solely to enable the purposes set forth in this Agreement including any uses necessary to effectuate the intent thereof. Advertiser will safeguard its password and other log-in information in accordance with industry standards. Advertiser remains solely responsible and liable for the Content in such account regardless of any assistance that MatureSensual may provide Advertiser with respect to such account (e.g., loading or transferring Content into the account) as permitted under this Agreement.
2. Grant of License Rights.
2.1 Advertiser hereby grants MatureSensual a non-exclusive royalty free license to use, display, copy, publish, post, exhibit, broadcast, transmit, communicate, perform, distribute, and disseminate on www.maturesensual.com, as well as other third party websites whose focus is the adult entertainment industry and will assist MatureSensual with getting more viewers to see Advertiser’s Content, including any derivative works based on, or compilation including, such Content, for the purposes set forth in this Agreement including any uses necessary to effectuate the intent thereof. Advertiser hereby grants MatureSensual the right, in MatureSensual’s sole discretion, to process and/or make changes such as deletions to the Content in order for such Content to comply with all applicable laws, rules, and regulations (collectively, “Laws”) and MatureSensual policies and procedures, and to deter third party intellectual property (eg., copyright) infringement. Specifically, Advertiser agrees that MatureSensual may place an “MatureSensual ” branded watermark on pictures submitted by Advertiser to MatureSensual for display on one of MatureSensual’s websites. Advertiser also understands and hereby consents and agrees that MatureSensual may enable Content viewers and others to create and/or post comments, ratings, reviews and the like (collectively, “Viewer Comments”) about such Advertiser on one or more owned or affiliated websites. Advertiser expressly releases MatureSensual from any and all liability arising in connection with the Viewer Comments or MatureSensual’s use of the Content, including, without limitation, liability arising from any blurring, distortion, alteration, watermarking or optical illusion that may occur.
2.2 Notwithstanding any provision hereunder to the contrary, MatureSensual shall have no obligation to enforce Advertiser’s copyrights or other intellectual property rights associated with the Content submitted and/or posted. Advertiser acknowledges that intellectual property theft is rampant on the Internet, and that Content may be stolen, copied or otherwise infringed by third parties over which MatureSensual has no control. Should any such infringement occur, Advertiser shall bear the sole obligation of enforcing Advertiser’s intellectual property rights, should it desire to do so. MatureSensual retains the right to enforce its own copyrights and other intellectual property rights associated with MatureSensual and related works. Advertiser will, at all times, reasonably cooperate with MatureSensual and its counsel in respect of any suspected infringement or suit for infringement, including, without limitation, testifying, and by making available any records, papers, information, and the like when reasonably requested by MatureSensual.
2.3 MatureSensual is not required or obligated to pay Advertiser any monetary compensation for the license rights that Advertiser has granted to MatureSensual hereunder, and Advertiser agrees that the submission and/or posting of the Content on www.maturesensual.com constitutes adequate and sufficient consideration for the grant of said rights.
2.4 The duration of the license rights granted hereunder by Advertiser to MatureSensual shall be for an unlimited period, except that said license rights may be terminated, at any time, upon ten (10) days’ written notification of termination. Such notification must be sent to email@example.com. Advertiser acknowledges that merely stopping payment on their advertisements or non-renewal of advertising with MatureSensual does not constitute a termination of license rights. Advertiser acknowledges that until MatureSensual receives written notice of termination, that MatureSensual may utilize Advertiser’s Content in its archived section www.maturesensual.com but all contact information will be removed from such Content. After effective termination of license rights by Advertiser, MatureSensual shall remove any Content from www.maturesensual.com. MatureSensual shall not be required to return any Content to Advertiser that Advertiser has submitted to MatureSensual. All license rights granted to MatureSensual hereunder shall be royalty free, fully assignable, transferable, and sublicenseable by MatureSensual, in its sole discretion.
2.6 Advertiser may designate a third party to act on Advertiser’s behalf by executing an Advertiser Delegation Agreement. Advertiser acknowledges that Advertiser is fully responsible for the actions of a designated third-party acting on Advertiser’s behalf, with or without Advertiser’s consent. Advertiser acknowledges that execution of an Advertiser Delegation Agreement does not release Advertiser from the terms of this Agreement and such Advertiser is jointly and severally liable for all actions of any delegate.
2.7 This Agreement does not constitute a license for Advertiser to use MatureSensual’s trade names, service marks or any other trade insignia owned or licensed by MatureSensual including but not limited to www.maturesensual.com and any term containing MatureSensual’s protected trademarks, service marks or trade names. Any use of any of MatureSensual’s or MatureSensual’s licensors’ trade names, service marks or any other trade insignia is strictly prohibited, absent MatureSensual’s prior written consent. As a specific matter – Advertiser is not permitted to register any Uniform Resource Locator (URL) or World Wide Web address that contains any of MatureSensual’s or MatureSensual’s licensors’ trademarks or URLs or that contain any terms that are confusingly similar to MatureSensual’s trademarks or URLs.
3. Representations, Warranties, Covenants, and Indemnity by Advertiser. Advertiser hereby represents, warrants, and covenants to MatureSensual as follows:
3.1 That Advertiser owns or possesses the legal authority to transfer or grant to MatureSensual any license rights, intellectual property rights, other legal or equitable rights necessary or required to permit the posting of the Content on www.maturesensual.com, including without limitation, all copyrights, trademark rights, trade name releases, and model releases of all persons appearing in said Content sufficient to permit the legal use of their names and likeness, including but not limited to waivers of all necessary rights of publicity, commercial exploitation and privacy.
3.2 That Advertiser has made no other agreements, obligations, commitments or legal encumbrances that might prevent or interfere with the rights and license that Advertiser has granted to MatureSensual hereunder or that might prevent MatureSensual from freely using the Content as provided in this Agreement.
3.3 That the Content is wholly original and has not been copied in whole or in part from any third party’s other work, advertisement, picture or source that is not owned or licensed to the Advertiser. The visual images contained in the Content are neither fake nor “stock” photography, and that any photograph of a person depicted in the Content is a true and accurate representation of the person depicted and available for any services advertised.
3.4 That all persons depicted in any pictorial representation in the Content that Advertiser has submitted to MatureSensual were adults over the age of eighteen (18) years of age (or older, if the age of adult status is greater than 18 in the jurisdiction where the persons were photographed), at the time that said persons were photographed, in connection with the creation or production of the Content.
3.5 That, if Advertiser is third party such as an Agency, that all photographs of individuals contained in the Content are photographs of an adult entertainer who the Agency actually presently employs and/or represents; should such individual no longer be associated with the Agency, Agency shall notify MatureSensual within one business day, and shall make such alterations to any posted Content to reflect any such change in association. The Agency further represents that the person signing this Agreement has personally reviewed age verification documents to confirm that the individual depicted in any Content submitted to MatureSensual is over the legal age of consent in the jurisdiction where the Content was created.
3.6 That there are no depictions or portrayals of any performer, model or other person in any Content submitted by Advertiser that, in any manner, directly or indirectly communicates, suggests or implies that any such person is a person under the age of eighteen (18) years or is otherwise a minor. MatureSensual maintains a zero tolerance policy relating to child pornography and/or exploitation. Any violations of this policy will be reported to law enforcement as required by applicable law.
3.7 That any personal identification and/or age verification documentation of the persons depicted in the Content that Advertiser has presented to MatureSensual is valid, authentic and real; that the information contained therein is true and accurate; and that said documentation was issued by the authority of an appropriate and valid government agency of the person whose name appears on the documentation. Advertiser also agrees that in the event that Advertiser does provide MatureSensual with personal identification and/or age verification documents, MatureSensual has Advertiser’s express permission to search, compare, and verify such identification documents against any applicable resources such as governmental databases and third party tools and software, and further has permission to maintain such documents and provide them to any law enforcement authority, or in response to subpoena or other legal process or obligation.
3.8 That Advertiser has and maintains valid, authentic, and real documentation of the persons depicted in the Content that Advertiser has presented to MatureSensual upon request, demonstrating that such persons were adults over the age of eighteen (18) years of age (or older, if the age of adult status is greater than 18 in the jurisdiction where the persons were photographed) when the Content depicting such persons was created.
3.9 That no claim has been made against Advertiser in relation to the Content or otherwise, and that Advertiser knows of no claim that the Content infringes the intellectual property rights or violates the rights in any other work and/or of any person, film, or corporation whatsoever; that the Content enjoys and will enjoy, either statutory or (to the extent it may exist) common law copyright protection in the United States and all countries adhering to the Berne and Universal Copyright Conventions.
3.10 That all obligations with respect to the Content, including, without limitation, all salaries, royalties, present and future license fees, service charges and the like, if any, have heretofore been fully paid.
3.11 That the Content: (a) is not illegal or contrary to Law; (b) does not promote or link to illegal activities; (c) does not promote or link to violence contrary to Law; (d) is not harassing, defamatory, hateful, abusive, libelous, or obscene; (e) does not link to websites that contain content that is illegal, defamatory, hateful, abusive, libelous, or obscene; (f) does not involve depictions of actual or simulated sexual activity; (g) does not display the genitals or pubic area; (h) is exempt from Section 2257; and (i) has not at any time been the subject of any prosecution, investigation or civil action by any party or governmental agency. MatureSensual reserves the right, but undertakes no obligation, to delete, remove or refuse to publish any Content that it believes to be illegal, obscene, offensive or in violation of this Agreement or its policies and procedures. Advertiser waives any and all claims relating to such removal.
3.12 That nothing in the Content constitutes or suggests an offer to engage in unlawful conduct or behavior, a solicitation or meeting to engage in unlawful conduct or behavior, or a communication relating to unlawful conduct or behavior of any kind, in all cases, with respect to all applicable Laws. Such Content is strictly prohibited and posting same will result in termination of Advertiser’s account with MatureSensual.
3.13 That if Advertiser is conducting a business that is described or featured in the Content submitted to MatureSensual by Advertiser or that is on Advertiser’s website or Advertiser’s own social networking site, that said business complies with all Laws such as in the United States and any country, state, county, and municipality in which it operates, and that Advertiser has obtained all necessary licenses, permits and authorizations to engage in such business from all applicable agencies and authorities.
3.14 That Advertiser has read, understands, agrees to, and shall fully abide by MatureSensual’s then current policies, statements and other operational procedures as they appear at www.maturesensual.com.
3.15 That Advertiser shall defend, indemnify and hold harmless MatureSensual from and against any action, suit, claim, judgments, penalties, losses, damages, costs, charges, including reasonable attorney’s fees, and other losses whatsoever which may be obtained or imposed by reason of the breach of any representation, warranty, covenant, or agreement or a misrepresentation made by Advertiser hereunder or any claim that any of the Content submitted by Advertiser to MatureSensual, or posted by Advertiser, infringes any intellectual property rights or another rights of any third party on account of the use of the Content by MatureSensual.
4. Limitation of Liability for Submitted Content and Traffic.
4.1 Advertiser agrees that MatureSensual shall not be responsible or liable in any way or to any degree for the loss or damage to any Content supplied or submitted by Advertiser to MatureSensual. All Content is subject to MatureSensual’s record retention and other related policies. Advertiser expressly acknowledges that Advertiser is only supplying copies of the Content to MatureSensual.
4.2 Advertiser agrees that MatureSensual shall not be responsible or liable for the acts or omissions of any users that contact Advertiser or visit Advertiser’s websites via www.maturesensual.com or otherwise (“Traffic”). Such Traffic comes AS-IS without any warranties of any kind whether express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose or quality. Advertiser is responsible for ensuring that such Traffic agrees to Advertiser’s terms and conditions and if such Traffic violates any such terms and conditions, Advertiser agrees not to hold MatureSensual liable or responsible.
5. Disclaimer of Warranties/Assumption of Risk; Limitation of Liabilities.
5.1 DISCLAIMER OF WARRANTIES/ASSUMPTION OF THE RISK. ADVERTISER EXPRESSLY AGREES THAT ITS USE OF THE SERVICES IS AT ADVERTISER’S SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. MATURESENSUAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PROVIDED BY LAW. MATURESENSUAL MAKES NO WARRANTY THAT THE SERVICES WILL MEET ADVERTISER’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES MATURESENSUAL MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE VIEWERS OR USERS OF ITS WEBSITES, THE TRAFFIC, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ADVERTISER UNDERSTANDS AND AGREES THAT ANY USE IT MAKES OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS AT ADVERTISER’S OWN DISCRETION AND RISK, AND THAT ADVERTISER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. FURTHERMORE, ADVERTISER ALSO AGREES THAT ANY INFORMATIVE ARTICLES, ADVERTISING TIPS OR OPINION ARTICLES (COLLECTIVELY REFERRED TO HEREIN AS “ARTICLES”) LOCATED ANYWHERE ON WWW.MATURESENSUAL.COM ARE NOT INTENDED AS EITHER PROFESSIONAL OR LEGAL ADVICE AND THEY SOLELY REFLECT THE OPINIONS OF THE ARTICLES AUTHORS. ADVERTISER HEREBY AGREES THAT ANY RELIANCE ON ARTICLES IS SOLELY AN ADVERTISER’S DECISION AND ADVERTISER FURTHER AGREES TO WAIVE ANY CLAIMS OF LIABILITY THAT MAY ARISE FROM ADVERTISER’S DECISION TO FOLLOW ANY ADVICE THAT MAY BE CONTAINED IN ANY ARTICLES.
5.2 LIMITATION OF LIABILITIES. ADVERTISER UNDERSTANDS AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MATURESENSUAL BE LIABLE FOR ANY DAMAGES WHATSOEVER TO ADVERTISER OR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM AGENCY’S RIGHTS (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND OTHER SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) RELATED TO, BASED UPON, OR ARISING OUT OF THIS AGREEMENT, THE SERVICES PROVIDED BY MATURESENSUAL, RELIANCE ON THE ARTICLES POSTED ON WWW.MATURESENSUAL.COM, OR THE USE OF SOFTWARE, HARDWARE OR TELECOMMUNICATION FACILITIES BY MATURESENSUAL IN PROVIDING SERVICES TO ADVERTISER, EVEN IF MATURESENSUAL HAS BEEN ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. ADVERTISER ACKNOWLEDGES THAT THE FOREGOING SENTENCE REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC OR OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION. IN ANY CASE, MATURESENSUAL’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT IN THE AGGREGATE SHALL BE LIMITED IN THE AGGREGATE TO A TOTAL OF NO MORE THAN TEN DOLLARS ($10.00). BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY.
6. MatureSensual Functioning as Online Service Provider.
6.1 Advertiser agrees that Advertiser is the creator and producer of its Content and is solely responsible for any Content that is posted on www.maturesensual.com, and accepts all obligations associated with the Content as described elsewhere in this Agreement.
6.2 The parties acknowledge and agree that MatureSensual acts as a facilitator of communication for its third party advertisers. MatureSensual does not produce, design, or otherwise provide any content to its advertisers. As such, the parties acknowledge and agree that MatureSensual shall be deemed to be an Online Service Provider (“OSP”) as that term is defined in the Digital Millennium Copyright Act (“DMCA”) and shall also be deemed to be an Interactive Computer Service as that term is used in the Communications Decency Act. Nothing contained hereunder shall be interpreted as a waiver of rights in this regard. Advertiser shall give notice and comply with the notification procedures of the DMCA and agree that MatureSensual will have and shall fully benefit from the safe harbor provisions set forth in the DMCA regarding OSPs, along with the immunity, liability limitations, Good Samaritan defense and other provisions pertaining to providers and users of Interactive Computer Services set forth in 47 U.S.C. § 230 (c) et seq., the records keeping and labeling compliance exemptions contained in 18 U.S.C. §2257(a)(2)(B)(iii) & (iv), and all similar notice and other provisions limiting or otherwise insulating the liability of OSPs and providers or users of Interactive Computer Services pursuant to the statutory or decisional law of the United States, any state or territory thereof, or any jurisdiction’s laws that may apply in which Advertiser or Advertiser’s assigns elect to bring any claim against MatureSensual or any of MatureSensual’s assigns or sub-licensees of rights granted to MatureSensual hereunder.
6.3 Section 230 Notice: Advertiser acknowledges its responsibility to prevent minors under its care from accessing harmful or inappropriate material. Advertiser agrees not to allow minors to view any such content, and Advertiser agrees to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), Advertiser is hereby informed that it can research such services at websites such as: http://www.getnetwise.org or http://www.child-internet-safety.com/internet_filters.php, among others. Please note that MatureSensual makes no representation or warranty regarding any of the products or services referenced on such sites, and MatureSensual recommends that Advertiser conducts appropriate due diligence before purchasing or installing any online filter. Advertiser agrees to take particular steps to prevent minors from viewing content on www.maturesensual.com if Advertiser’s computer or mobile device can be accessed by a minor. Finally, Advertiser agrees that if it is a parent or guardian of a minor child, it is Advertiser’s responsibility, not MatureSensual’s, to keep any age-restricted content on www.maturesensual.com from being displayed or accessed by Advertiser’s children or wards.
Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, Advertiser acknowledges and understands that MatureSensual operates as the provider of an Interactive Computer Service. Thus, MatureSensual is immune from, and cannot be held responsible for, claims arising from the publication or transmission of the Content of Advertisers and third parties. MatureSensual does not create such content, and is not responsible for the publication of remarks or communications of third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows MatureSensual to remove or block any content found to be offensive, defamatory, obscene or otherwise violative of MatureSensual’s policies, without impacting MatureSensual’s status as the provider of an Interactive Computer Service. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this Agreement between Advertiser and MatureSensual.
7. Miscellaneous Provisions.
7.1 Except for credit card information, all Content and other information provided by Advertiser to MatureSensual is deemed to be not confidential. Notwithstanding anything to the contrary in this Agreement, MatureSensual may, in its sole discretion, respond to reasonable requests for Advertiser information, whether formal or informal. MatureSensual shall have no obligation to resist or oppose such requests, or notify Advertiser of such requests, before providing any responsive information.
7.2 Each party acknowledges and agrees that it has fully read and understands this Agreement and has had the opportunity to seek legal counsel of its choice. This Agreement contains the entire agreement between Advertiser and MatureSensual regarding the subject matter hereunder. This Agreement supersedes all prior written and oral understandings, writings, and representations and may only be amended upon notice by MatureSensual. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns. This Agreement may not be transferred or assigned by Advertiser.
7.3 Advertiser agrees that in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included.
7.4 Advertiser agrees that for purposes of construction, this Agreement shall be deemed to have been drafted by both Advertiser and MatureSensual. Any and all ambiguities and/or inconsistencies shall not be construed in favor of or against either party hereto.
7.5 Advertiser agrees that in any legal action arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs, including attorneys fees on appeal.
7.6 The parties agree that this Agreement shall be governed by and construed under the laws of the State of California and the United States as applied to agreements between California state residents entered into and to be performed within the California, except as governed by Federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. 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 or informal negotiations, then as the parties sole method of resolving such dispute, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Streamlined Arbitration Rules and Procedures of JAMS. 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 for which injunctive relief is properly sought which must be in a court of competent jurisdiction located in North Carolina.
The arbitration shall be conducted in California, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. 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 must be a member in good standing of a state bar and have the ability to sign an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts, as well as the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. The decision or award of the arbitrator shall be final and binding upon the parties. Any arbitral award may be entered as a judgment or order in any court of competent jurisdiction. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
7.7 No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
7.8 Other than Advertiser’s obligation to pay fees when due, neither party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including, without limitation, acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server or software. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
7.9 The relationship between MatureSensual and Advertiser under this Agreement is that of independent contractors and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, 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 beyond the obligations created by this Agreement.
7.10 Either party shall be entitled to terminate this Agreement for cause, based on breach of this Agreement, immediately upon written notice to the other party. Either party may terminate this Agreement without cause, upon ten (10) days notice to the other. However, any cancellation by an Advertiser will result in all Advertiser provided Content being removed from www.maturesensual.com. Upon termination, the relationship of the parties shall cease. No content provided by Advertiser shall be returned upon termination. In the event of termination by the Advertiser no payments shall be returned or refunded.
7.11 All notices (eg., under Section 2.4 or Section 7.10) to MatureSensual hereunder must be sent to the General Counsel of MatureSensual at firstname.lastname@example.org.
7.12 For avoidance of doubt, to the extent an indemnification or release is provided in favor of or for the benefit of MatureSensual.
7.13 Sections 1.1, 1.2, 1.4, 1.5, 2.2, 2.3, and Sections 3 through 7, and all Advertiser’s representations, warranties, and indemnification obligations shall survive termination or expiration of this Agreement for any reason.
7.14 This Agreement is intended to be governed by the Electronic Signatures Act (E-SIGN Act). By submitting the acceptance form provided by MatureSensual, Advertiser thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained herein.
Important! Notwithstanding anything to the contrary in this Agreement or elsewhere, MatureSensual always reserves the right in its sole discretion to request ID’s, request photos for verification purposes, verify the age of the advertisers, verify the age of the advertisers featured in any photos at the time the photos were taken, reject Content, change pricing and/or the pricing model, and/or change advertising categories and policies with respect to such categories. To the extent Advertiser does not agree with changes to the pricing or pricing model or service options, Advertiser may terminate this Agreement and not place any future advertisements.