TERMS & CONDITIONS
Last Updated: May 1, 2017
VS Media, Inc. and Flirt4Free UE Ltd. (collectively the “Company”) welcomes you to miamalkovacams.com (the “Website”), an adult entertainment website. It is important to the Company that you and other visitors have the best possible experience while using the Website, and that, when you use the Website, you understand your legal rights and obligations. Please read this terms-of-use agreement, which is a legal agreement between you and the Company that governs your access to and use of the Website, including any content, functionality, and services offered on or through the Website.
By accessing the Website, including registering for an account, you agree to this agreement. If you do not want to agree to this agreement, you must not access the Website.
Section 230(d) Notice: In accordance with 47 U.S.C. § 230(d), you are notified that parental control protections (including computer hardware, software, or filtering services) are commercially available that may help in limiting access to material that is harmful to minors. You may find information about providers of these protections on the Internet by searching “parental control protection” or similar terms.
Age Restriction: Only adults (1) who are at least 18-years old, and (2) who have reached the age of majority where they live may access the Website. The Company forbids all persons who do not meet these age requirements from accessing the Website. If minors have access to your computer, please restrain their access to sexually explicit material by using any of the following products, which the Company provides for informational purposes only and does not endorse:CYBERsitter™ | Net Nanny® | CyberPatrol | ASACP.
Notice of Explicit Content: The Website contains content that you may find offensive, indecent, or objectionable, including heterosexual, bisexual, homosexual, and transsexual situations of a sexual nature. This content may or may not be identified as having attributes that you may find offensive. You acknowledge that you use the Website at your own risk, and the Company has no liability to you for any content you view.
Child Pornography Prohibited: The Company prohibits pornographic content involving minors. The Company only allows visual media of consenting adults for consenting adults on the Website. If you see any visual media, real or simulated, depicting minors engaged in sexual activity within the Website, please report this to the Company promptly at email@example.com. Please include with your report all appropriate evidence, including the date and time of identification. The Company will promptly investigate all reports and take appropriate action. The Company fully cooperates with any law-enforcement agency investigating child pornography.
- The Website allows users to view and discuss adult and pornographic content, including sexually explicit images, performances, descriptions, and videos. To use certain features on the Website, you must first register with the Website through the Website’s online registration process.
- This agreement applies to all users of the Website, whether you are a “visitor” or a “registered user.” By accessing any part of the Website, you agree to this agreement. If you do not want to agree to this agreement, you must leave the Website. If you breach any part of this agreement, the Company may revoke your license to access the Website, block your access, and/or cancel your account (if you have one).
- The Company is not liable for anything that you post or say while you are on the Website. The Company does not monitor the Content of the Website, but if the Company does see or learns that you have posted something that the Company finds inappropriate, the Company will remove it. If you post Content that belongs to someone else and they complain (or involve their lawyers), the Company is not in the firing line. You must take responsibility for what you post.
- The Company may change this agreement on one or more occasions by updating this page. The top of this page will tell you when the Company last updated this agreement. Changes will take effect on the “last updated” date stated on the top of this page. Changes will not operate retroactively. If the changes are material or substantial, the Company will notify users in a reasonable and appropriate manner. But you should frequently check this page to make sure that you are operating under the most current version of this agreement. The Company will consider your continued use of the Website after it posts the changes as your acceptance of the changes even if you do not read them. If you do not agree to the changes, your sole remedy is to stop accessing the Website.
- If you have any questions about this agreement or any questions or comments about the Website, please email the Company at firstname.lastname@example.org.
- The Website contains uncensored sexually explicit material unsuitable for minors. Only adults (1) who are at least 18-years old and (2) who have reached the age of majority where they live may access the Website. If you do not meet these age requirements, you must not access the Website and must leave now.
By accessing the Website, you state that the following facts are accurate:
- You (1) are at least 18-years old, (2) have reached the age of majority where you live, and (3) have the legal capacity to enter into this agreement;
- All information you provided to the Company is accurate, and you will promptly update this information when necessary to make sure that it remains accurate;
- You are aware of the adult nature of the content available on the Website, and you are not offended by visual images, verbal descriptions, and audio sounds of a sexually oriented nature, which may include graphic visual depictions and descriptions of nudity and sexual activity;
- You are familiar with your community’s laws affecting your right to access adult- oriented materials, including sexually explicit material depicting bondage, S/M, and other fetish activities;
- You have the legal right to access adult-oriented materials, including sexually explicit material depicting bondage, S/M, and other fetish activities, and the Company has legal right to transmit them to you;
- You are voluntarily requesting adult-oriented materials for your own private enjoyment and not for commercial use;
- You are not accessing the Website from a place, country, or location in which doing so would or could be considered a violation of any law;
- You will not share these materials with a minor or otherwise make them available to a minor; and
- By accessing the Website, you will have released and discharged the providers, owners, and creators of the Website from all liability that might arise as the result of your access.
The Company hereby grants you a limited, nonexclusive, nonsublicensable, nontransferable license to access the Website and its Content for your personal and noncommercial use in accordance with this agreement. For purposes of this agreement,
- “Access” means visit the Website, view its Content, and use or participate in any of its services and features.
- “Content” means any material, including the text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, communications, profiles, streams, data, and other materials found on the Website.
- “Personal and noncommercial use” means a use of the Content for which no fee or consideration is charged or received by you, which takes place in your private residence or, if outside your residence, is limited to a private viewing by you. Personal and noncommercial use excludes any public or private event presentation even if no fee is charged.
The license granted in section 3.1 does not include any of the following:
- resale or commercial use of the Website;
- distribution, public performance, or public display of the Website or the Content;
- changing or otherwise making any derivative uses of the Website and the Content, or any part of the Website or the Content, unless the Company specifically authorizes change or derivative use in a separate written agreement with you;
- use of any data mining, robots, or similar gathering or extraction methods;
- downloading or otherwise storing on any electronic device any part of the Website or the Content except as may be permitted on the Website; or
- any other use of the Website or the Content other than for its intended purpose.
- Your license to access the Website does not transfer ownership of or title to a copy of any Content that you view, and the Company only authorizes you to use your account and your access in accordance with this agreement. Any use of the Website or the Content except as authorized by this Agreement will terminate the license granted here. Unauthorized use of the Website or the Content also may violate intellectual property laws or other laws. Unless stated here, nothing in this Agreement should be construed as conferring any license or ownership right to intellectual property rights, whether by estoppel, implication, or otherwise. The Company may revoke this license at any time.
- The license granted in section 3.1 does not include any of the following:
- License Grant
Intellectual Property Rights of Company
Ownership of Website
- You acknowledge that the Website and its Content, features, and functionality (including all information, software, text, displays, images, video, audio, and audiovisual combinations and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other providers of the Content and are protected by copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
- You acknowledge that any Materials that you purchase and/or participate in on or through the Website, either total or in part, including but not limited to private shows, may be seen by other users and/or employees or agents of the Company. Even if your voice may be audible during a recorded private show, you acknowledge and agree that you own no intellectual property rights in that show, which is owned solely and exclusively by the Company, which reserves its right to use the Materials in any way it chooses in any medium at any time in perpetuity.
- Video Secrets®, Flirt4Free®, VS Media®, and Peekshows® are registered trademarks of the Company. No use of these trademarks by you or any other user shall be permitted except through the prior express written authorization and permission of the Company. All rights reserved.
- Ownership of Website
Responsibility for Account
- You are responsible for maintaining the confidentiality of your password and account. Further, you are responsible for all activities that occur under your account. You will promptly notify the Company of any unauthorized use of your account or any other breach of security.
Liability for Account Misuse
- The Company will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You agree that you will be liable for any and all losses, liabilities, obligations, penalties, claims, costs, disbursements and expenses incurred by Company, of any kind whatsoever, relating to any fraudulent reporting of a lost or stolen Payment Account used to obtain goods or services from the Website or any fraudulent reporting of an unauthorized charge on your Payment Account which has been made by you or anyone under your authority. The liability specified in this Paragraph shall not limit any other liability you may have for a breach of any other term, condition, promise, and/or warranty set forth in this Agreement. You further acknowledge and agree that you will remain liable to Company for any unauthorized use of the Website associated with your Membership account.
Use of Other Accounts
- You must not use anyone else’s account at any time.
- The Company cares about the integrity and security of your personal information, but the Company cannot guarantee that unauthorized third parties will never be able to defeat the Website’s security measures or use any personal information you provide to the Company for improper purposes. You acknowledge that you provide your personal information at your own risk.
- When you register on the Website, you may request or expressly agree to receive certain goods or services and when you do so, you authorize the charges that may be imposed by the Company as a result. Payment for the services provided to you at, and/or through Website may be made by automatic debit to your Payment Account that you provided at the time of registration with Company (and which you may periodically update), and you hereby authorize Company and its agents to transact such payments on your behalf in the medium that is the normal course of business by Company. Unless and until you notify Company that you wish to cancel or terminate your Membership, you hereby agree and authorize Company or its designated agent or assignee to charge your Payment Account for your purchases of fee-for-service credits. You further authorize Company or its designated agent or assignee to charge your Payment Account for any and all purchases of products, services, and entertainment that you request, authorize or approve in connection with your use of the Website.
Charges to your Payment Account will appear discreetly from one of our authorized sales agencies as one of the following:
VS.COM, VS1.COM, VS2.COM, VS3.COM, VS4.COM, or
- VS5.COM 800-685-9236
- VS.COM, VS1.COM, VS2.COM, VS3.COM, VS4.COM, or
Play and Pay
- Most users of the Website purchase credits that they can they use in whatever manner they see fit, including paying for performances and tipping. The Company, in its sole and exclusive discretion, may enable some users to pay for performances after the performance instead of before (“Play and Pay Users”). If you are a Play and Pay User, you agree, by accessing the Website and the Materials, that the Company may automatically deduct from your Payment Account the undiscounted value of all transactions you request under the Play and Pay program, and that you ensure that the Company will receive full payment for all of your transactions and use of the Website.
You agree to promptly inform the Company of any of the following:
- 1. Loss or theft of your Payment Account used to pay fees incurred by your use of the Website or other goods or services obtained in, at, or through the Website;
- 2. Changes in the expiration date of your Payment Account;
- 3. Changes in home or billing address for your Payment Account;
- 4. Apparent breaches of security regarding your Membership including but not limited to loss, theft, unauthorized disclosure or unauthorized use of an ID or password; and
- 5. All other changes pertaining to your Payment Account that may affect the Company’s ability to expeditiously obtain payments due to the Company.
- You agree that you will remain liable for any unauthorized use of the Website or any of its services associated with your Membership until you have notified Company's Customer Service as to any of the aforementioned. If you believe that you have been erroneously billed, please notify Company immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, all previous fees billed to you will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer. You release the Company from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication.
- Cancellation Policy
- You may terminate your access to and use of the Website at any time for any reason; the cancellation is effective upon actual receipt of your written intent to cancel by the Company. The Company may cancel your account at any time, for any (or no) reason in its sole discretion, including but not limited to your violation of these Terms and Conditions.
- Upon cancellation of a standard customer account, your username and password will be removed from the Company’s online database immediately and you will not be permitted to access the private Materials on the Website. Upon cancellation of a special Membership Account (such as a VIP account), your username and password will remain active and you will still be able to access the general parts of the Website.
- Upon cancellation by either you or the Company, you shall remain liable for any charges requested or incurred by you during your use of the Website and you authorize the Company to charge your Payment Account for any such outstanding charges after cancellation by either you or the Company.
- Nonactivity & Lapse
- If you have registered but have failed to make a purchase on the Website for a period of more than one hundred eighty (180) consecutive days (the “Lapse Period”), then you agree that Company may, at any time thereafter, suspend your use of any of your prepaid fee-for-service credits, in its sole and absolute discretion, and you may be deemed to have forfeited the balance of your prepaid fee-for-service credits. Thereafter, if you subsequently login to your Membership account, you may be prevented from using any of your forfeited prepaid fee-for-service credits, as such credits will be deemed forfeited; provided, however, Company may, in its sole and absolute discretion, elect to return or refund the balance of forfeited prepaid fee-for-service credits for your subsequent use on the Website.
- You agree to promptly inform the Company of any of the following:
Agreement to receive communications
- By registering for an account, you specifically consent and opt in to receiving electronic communications from the Company relating to your account. These communications may involve sending emails to your email address provided during registration or posting communications on the Website and will include notices about your account (e.g., change in password, confirmation emails, and other transactional information) and are part of your relationship with the Company. You acknowledge that any notices, agreements, disclosures, or other communications that the Company sends to you electronically will satisfy any legal communication requirements, including that communications be in writing. The Company recommends that you keep copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent and opt in to receiving certain other communications from the Company, including newsletters about new features and content, special offers, promotional announcements, and customer surveys via email or other methods. You acknowledge that communications you receive from the Company may contain sexually-explicit material unsuitable for minors.
No Offsite or Outside Communications
- For the safety of all parties, the Company does not endorse, encourage, recommend or arrange personal or social communications or meetings among users of the Website or between a user and any performer, affiliate or any agent or representative of the Company, performers or affiliates. Other than “liking” a performer’s social media page or account, the Company strongly advises against all such personal or social communications or meetings. In the event that you choose to meet someone you have made contact with through the Website, you do so at your own risk and you agree that Company shall not be held responsible in any way for the outcome of any contact or meeting, whether in person, by telephone or any other means. You further acknowledge and agree that Company does not screen any communications by users or other third parties with respect to the Website (although it reserves the right to do so) and Company has no control over such communications that any user or other third party may partake in and makes no representations or warranties with respect to the character, veracity, age, health, intentions or any other attribute of any of Company’s agents or contractors (including performers on the Website), any affiliate or any other users of the Website, including any person who places any advertisements, profiles or notices on or in association with the Website.
Consequences and Liability for Inappropriate Communications
- You agree that you will not post, submit, publish, display, disseminate, or otherwise communicate any defamatory, libelous, inaccurate, abusive, threatening, offensive, fraudulent, obscene, lewd, excessively violent, harassing or otherwise objectionable or illegal material or any material that would violate or infringe the copyright, trademark, rights of publicity, privacy rights or other rights of any person. You acknowledge that transmission any material that violates any federal, state, or local law in the United States or anywhere else in the world, is strictly prohibited by Company and you further agree that any transmission of such material by you shall constitute a material breach of these Terms and Conditions, entitling Company, without notice and without any liability for damages or reimbursement to you, to immediately terminate your right to access the Website and/or your Membership account. You acknowledge and agree that you, and not Company, shall be solely responsible and liable for all damages, liability or other consequences, foreseen or unforeseen, of all information that you submit, publish, display, disseminate or otherwise communicate through the Website even if a claim for damages or liability should arise after termination of your right to access the Website and/or your Membership account. The Company reserves the right, in its sole and absolute discretion, to delete, move, or edit any communications or materials, without notice, that it deems to violate these Terms and Conditions or applicable law, or to be otherwise unacceptable.
- Note that inappropriate behavior and/or conduct, both verbal and nonverbal, toward any performer, agent or other representative of the Company, can result in Company terminating your account and your access to certain parts of the Website. The Company reserves the sole and exclusive discretion to determine when and if a user’s behavior has become “inappropriate” under this provision, warranting a termination of his or her account and use.
No Confidential Communications
- You acknowledge and agree that all messages or content posted by you or others in any chat room or public areas on the Website is readily accessible to the general public and consequently should not be considered private, confidential or proprietary. You should not use the Website for any communication which you intend only the intended recipient(s) to read. Notice is hereby given that all communications made by you in connection with your access and use of any and all parts of the Website can and may be read by the operators of the Website, whether or not they are the intended recipient(s). No messages or other communications made by you are private or secure. To the extent that your use of the Website includes any other user seeing or hearing you, those communications can also be accessed, viewed, and heard by the operators and/or other agents of Company whether or not they are the intended recipient(s).
- Although the Company does not assume the duty or obligation to monitor any messages or other materials posted or uploaded to the Website by third parties, including you, it reserves the right but not the obligation, in its sole and absolute discretion, to monitor any and all materials posted or uploaded to the Website by third parties, including you, at any time without prior notice to ensure that they conform to any content guidelines or policies of the Website which may be applicable from time to time.
Terminating communications with the Company
- You agree that your request, authorization and permission for Company to send you such materials and communications herein shall continue to be in effect unless and until you notify Company that you wish to be deleted from Company's email list, in which case, you acknowledge and agree that Company shall be obligated only to delete you from its email list and not the email list(s) of any third parties regardless of whether such parties obtained your email information through Company. You acknowledge and agree that you will need to contact such third parties separately to be deleted from their email list(s). If you do not wish to receive advertising email from Company, manage your emails here: http://miamalkovacams.com/my-account/secure/email-settings.php.
- Agreement to receive communications
- While using the Website, you must comply with all applicable laws and regulations that apply to your access to the Website and its Content, including laws relating to the Internet, data, electronic communications, or the sending of technical data exported from the United States or the country where you live.
You must not engage in any of the following prohibited activities:
- Copying, distributing, or disclosing any part of the Website in any medium, including by any automated or non-automated “scraping;”
- Using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Website;
- Transmitting spam, chain letters, or other unsolicited email;
- Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Website;
- Taking any action that imposes, or may impose at the Company’s sole discretion an unreasonable or disproportionately large load on the Website infrastructure;
- Uploading invalid data, viruses, worms, or other software agents through the Website;
- Collecting or harvesting any personally identifiable information, including account names, from the Website;
- Using the Website for any commercial solicitation purposes;
- Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity;
- Interfering with the proper working of the Website;
- Accessing any Content on the Website through any technology or means other than those provided or authorized by the Website;
- Bypassing the security measures that the Company may use to prevent or restrict access to the Website, including features that prevent or restrict use or copying of any Content or enforce limitations on use of the Website or the content located on it; or
- Post or upload any material or statements that are defamatory, libelous, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, invade anyone’s privacy, or are otherwise objectionable;
- Make any statements that promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
- Make any statements that promote incest, rape or nonconsensual sex, extreme violence, torture, nonconsensual pain, blood, cutting, erotic asphyxiation, torture, necrophilia, sado-masochistic abuse or bondage, genital mutilation, bestiality, urination, defecation, enema play, vomiting, or menstrual bleeding;
- Use the Website to infringe any copyright, patent, trademark, trade secret, or other intellectual property rights of any person;
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization; or
- Give the impression that your statements or postings emanate from or are endorsed by the Company or any other person, if this is not the case.
- The Company may change, limit, or terminate your access if you fail to comply with this section. Unauthorized use of the Website or the Content may also violate various laws, including copyright and trademark laws, the laws of privacy and publicity, and communications regulations and statutes. The Company will take appropriate action against you for any unauthorized use of the Website or the Content, including seeking civil, criminal, or injunctive relief and termination of your access or registration.
- The Company reserves the right to do any of the following:
You must not engage in any of the following prohibited activities:
- Remove or refuse to post any submission or communication for any reason;
- Take any action against any submission or communication that the Company considers necessary or appropriate, including if the Company believes that the submission or communication breaches this agreement, infringes any legal right of any person, threatens the personal safety of users of the Website or the public, or could create liability for the Company;
- Disclose your identity or other information about you to any person who claims that your submission or communication violates their rights, including their intellectual-property rights or their privacy rights;
- Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Website; or
- Terminate or suspend your access to all or part of the Website for any reason, including breach of this agreement.
- The Company will fully cooperate with any law enforcement authorities or court order requesting or directing the Company to disclose the identity of or other information about anyone posting any submission or communication on or through the Website. You hereby waive any claims you might have against the Company—including its affiliates, licensees, and service providers—resulting from any action taken by the Company during or because of the Company’s investigations and from any actions taken as a consequence of investigations by either the Company or law enforcement authorities.
- The Company cannot and does not review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. You remain solely responsible for the content of your submissions and communications. The Company will not be liable for any action or inaction regarding submissions, transmissions, communications, or content provided by any user or third party. The Company will not be liable to anyone for performance or nonperformance of the activities described in this section 7. But if you know of any submission or communication that violates this agreement, please email the Company at email@example.com. Please provide as much detail as possible, including (1) a copy of the objectionable submission or the location where the Company may find it, (2) the reason the Company should remove it, and (3) a statement certifying the accuracy of the information you provided to the Company.
- The Website may contain links to third-party websites or resources. You acknowledge that the Company is not responsible or liable for (1) the availability or accuracy of those websites or resources; or (2) the content, products, or services on or available from those websites or resources. Links to third-party websites or resources do not imply any endorsement by the Company of those websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party websites or resources.
- Through the Website, you will have the ability to access or use content provided by third parties. The Company cannot guarantee that third-party content will be free of material you may find objectionable or otherwise. The Company will not be liable to you for your access or use of any third-party content.
Compliance with Law
- The Company is located in the state of California, United States of America. The Company is not making any statement that the Website or any of its Content is accessible or appropriate outside of the United States. Access to the Website might not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for complying with all local laws. If you access the Website in a jurisdiction that prohibits or restricts its use, the Company will not have any liability to you for your use.
Acknowledgments, Disclaimers, and Limits of Liability
To the fullest extent permitted by law, content on the Website and Your use of the Website, including without limitation Content available for purchase, is provided on an “as is” and “as available” basis with no representation or warranty of any kind. There are no warranties or representations regarding: the availability of the Website or any particular Content or performer; the accuracy of any Content on the Website; warranties of merchantability; fitness for a particular purpose; and title or non-infringement. To the fullest extent permitted by law, you specifically acknowledge that Company shall not be liable for any Content available or accessible on or through the Website, or the defamatory, offensive, or illegal conduct of any third party, and that the risk of harm or damage from the foregoing rests entirely with you.
- A. No Guarantee of Accurate Communications You understand that the Company does not guarantee or vouch for the accuracy or truthfulness of any messages, communication, information or content of any kind which has been posted, uploaded or provided by other users of the Website, including without limitation all performers and advertisers, and that consequently you release Company from any and all liability and responsibility in connection with verifying the accuracy of any such messages, communication, information or content of any kind provided by other users of the Website.
- B.No screening or endorsement of advertisers You acknowledge and understand that the Company does not screen, endorse, monitor, control, investigate, supervise or verify any advertisements or communications submitted to the Website, including by a third parties providing Content on or to the Website, including performers, affiliates or other third-party licensees, advertisers, or other users of the Website for electronic dissemination through the Website. You are therefore cautioned and advised to use your own judgment to evaluate all advertisements and other communications available at or through the use of the Website prior to purchasing goods and/or services described on the Website or otherwise responding to any communication at the Website.
- C. No warranty regarding information security You acknowledge that the Company cannot ensure nor does it make any representations or warranties regarding the security or privacy of information that you voluntarily provide to the Company or any other third party in connection with your registration, access to or use of the Website, and you release the Company and its directors, officers, employees, independent contractors, advertisers, affiliates, suppliers, agents and attorneys, and their successors and assigns from any and all liability and responsibility in connection with the use of such information.
- D. No guarantee that you will not encounter harmful or malicious Code You understand that Company, its affiliates and any third party that provides Content on the Website does not and cannot represent, guarantee or warrant that the Website or any Content or any other files you may access at, in or through, or download from the Website or any website linked to Website or any affiliated website, will be free of viruses, worms, Trojan horses or other code or matter of any kind that may manifest contaminating or destructive properties ("Harmful Code"). You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, protection of your computer(s) and for maintaining a means of reconstructing data that you might lose because of Harmful Code. Neither Company, nor its affiliates nor any third party that provides content at the Website assumes any responsibility or risk associated with the possibility of damage to your computer(s) or any other devices through your use of the Website.
- E. Limitation of Liability You agree that as a material condition to your obtaining the license to use the Website set forth herein, and to access the Content made available to you at the Website, you agree that any and all liability that might be attributable to Company, any third party with respect to your access and use of the Website and Content, including any performer, any affiliate of Company, or any of the Company’s directors, officers, employees, independent contractors, advertisers, affiliates, suppliers, agents and attorneys, and their successors and assigns, that directly or indirectly results from your use of the Website or Content; including, without limitation, any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, alteration of, or use of records, whether for breach of contract, negligence or under any other cause or action, shall be strictly limited to the lesser amount of (1) the amount you paid the Company for the applicable purchase out of which the liability arose; or (2) fifty dollars ($50.00). In the event that you live in a jurisdiction that does not allow or honor this limitation or exclusion of liability for incidental or consequential damages, You acknowledge and agree that it is the express intent of the parties hereto that the limitations of liability set forth in this paragraph and elsewhere in this Agreement shall be construed to be as broad as is permissible under applicable law.
- F. Release of Liability You hereby release Company, its affiliates and related entities, together with their respective directors, officers, employees, independent contractors, advertisers, affiliates, suppliers, agents and attorneys, and their successors and assigns, from any and all liability and responsibility in connection with your access and use of the Website or the Content and all other information, messages, communication or other materials you may receive from the Company or other third party in connection with your use of the Website. Under no circumstances, and under no cause of action or legal theory, shall Company and its affiliates and related entities, together with their respective directors, officers, employees, independent contractors, advertisers, affiliates, suppliers, agents and attorneys, and their successors and assigns, be liable to you or any other person for any indirect, special, incidental, or consequential damages of any character including, without limitation, damages for loss goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages resulting from any viruses, worms, Trojan Horses or other destructive software or materials, or communications by you or other users of the Website, or from any use of Content available at the Website or any other use of the Website whatsoever. This disclaimer of warranty constitutes an essential part of these Terms and Conditions.
G. Waiver of Section 1542
With respect to the releases of liability set forth in these Terms and Conditions, you hereby acknowledge that you have been advised by your independent counsel or you otherwise understand the consequences of entering into the general release and discharge of all known and unknown Claims as set forth in these Terms and Conditions, and that you are familiar with the provisions of Section 1542 of the California Code, which currently provides that:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
- You hereby expressly waive any and all rights under Section 1542 and under any other federal or state statutes or laws of similar effect. Notwithstanding the foregoing, however, nothing herein shall be construed or operate to limit any obligation, duty, warranty or other responsibility set forth in these Terms and Conditions, in any way.
- 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.
- Scope of Disclaimers, Exclusions, and Limits The disclaimers, exclusions, and limits stated herein apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive you of any mandatory protections provided to you by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the exclusion of some damages, or one or more of the disclaimers, exclusions, or limits may not apply to you.
- To the fullest extent permitted by law, content on the Website and Your use of the Website, including without limitation Content available for purchase, is provided on an “as is” and “as available” basis with no representation or warranty of any kind. There are no warranties or representations regarding: the availability of the Website or any particular Content or performer; the accuracy of any Content on the Website; warranties of merchantability; fitness for a particular purpose; and title or non-infringement. To the fullest extent permitted by law, you specifically acknowledge that Company shall not be liable for any Content available or accessible on or through the Website, or the defamatory, offensive, or illegal conduct of any third party, and that the risk of harm or damage from the foregoing rests entirely with you.
You will pay the Company, its directors, officers, employees, agents, contractors, subsidiaries, affiliates, licensors, content providers, and service providers (the “Indemnified Parties”) for any Loss of the Indemnified Parties’ that is caused by any of the following:
- 1. Your actual or alleged access to or conduct on the Website;
- 2. Your breach of this agreement;
- 3. Your actual or alleged violation of rights of any person, including intellectual property, publicity, and privacy rights;
- 4 .Your actual or alleged violation of any applicable law;
- 5. Your actual or alleged negligent, fraudulent, or intentional conduct; or
- 6. Your actual or alleged criminal conduct.
- However, you are not required to pay if the Loss was caused by the Indemnified Parties’ intentional misconduct.
- You will pay the Company, its directors, officers, employees, agents, contractors, subsidiaries, affiliates, licensors, content providers, and service providers (the “Indemnified Parties”) for any Loss of the Indemnified Parties’ that is caused by any of the following:
- “Loss” means an amount that the Indemnified Parties are legally responsible for or pay in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A Loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
- A loss is “caused by” an event if the Loss would not have happened without the event, even if the event is not a proximate cause of the Loss.
Indemnified Parties’ Duty to Notify You
- If the Indemnified Party has your accurate and current contact information, the Indemnified Party will notify you before the 30th day after the Indemnified Party knows or should reasonably have known of a claim for a Loss that you might be compelled to pay. Notwithstanding this provision, the Indemnified Party’s failure to give you timely notice does not end your obligation, unless if that failure prejudices your ability to defend or mitigate losses.
Legal Defense of a Claim
- The Indemnified Party has control over defending a claim for a Loss (including settling it), unless the Indemnified Party directs you to control the defense. If the Indemnified Party directs you to control the defense, you will not settle any litigation without the Indemnified Party’s written consent if the settlement (1) imposes a penalty or limitation on the Indemnified Party, (2) admits the Indemnified Party’s fault, or (3) does not fully release the Indemnified Party from liability. You and the Indemnified Party will cooperate with each other in good faith on a claim.
- The Indemnified Parties’ rights under this section do not affect other rights they might have.
- In General
Governing Law; Place for Resolving Disputes
- The laws of the United States of America, and the state of California, specifically — without giving effect to any conflicts of law principles—govern all matters arising out of or relating to the Website or this agreement. The predominant purpose of this agreement is providing services and licensing access to intellectual property and not a “sale of goods.” This agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- Except for disputes subject to arbitration, all disputes arising out of or relating to the Website or this agreement will be subject to the exclusive jurisdiction and venue of the United States District Court for the Central District of California or any state court in Los Angeles County, California. Each party hereby submits to the personal jurisdiction of the United States District Court for the Central District of California and the state courts in Los Angeles County, California to resolve all disputes not subject to arbitration. Each party hereby waives any right to seek another forum or venue because of improper or inconvenient forum.
- For purposes of this section, the Website will be deemed solely based in the state of California and will be deemed a passive website that does not give rise to personal jurisdiction over the Company, either specific or general, in any other jurisdiction.
- Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this dispute resolution process.
- Each party will allow the other a reasonable opportunity to comply before it claims that the other has not met the duties under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of or relating to the Website or this agreement.
- If the parties cannot settle a dispute arising out of or relating to the Website or this agreement through negotiation after 30 days, either party may, by notice to the other party and the International Institute of Conflict Prevention & Resolution (“CPR”), demand mediation under the Mediation Procedure of CPR. Mediation will take place in Los Angeles County, California. The language of the mediation will be English. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
- If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to the Website or this agreement by binding arbitration administered by CPR in accordance with its Rules for Administered Arbitration. A single arbitrator will preside over the arbitration. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
- Unless the parties expressly agree otherwise, the arbitration will take place in Los Angeles County, California.
- Each party will be responsible for paying its equal share of any filing, administrative, and arbitrator fees associated with the arbitration.
- The arbitrator may grant whatever relief would be available in a court at law or in equity, except that the arbitrator must not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. In accordance with this section, the arbitrator’s award will include costs of arbitration, reasonable legal fees, and reasonable costs for expert and other witnesses. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
- For Users Residing in Europe Only
- The European Commission has established an online platform for alternative dispute resolutions that providers for an out-of-court method to solve any dispute related to and stemming from online sales and service contracts. As a consequence, if you are a European consumer, you can use such platform for resolving any dispute stemming from the online contract entered into with the Company. The platform is available here: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.show&lng=EN.
- Right to Injunctive Relief
- Nothing in this section will prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the Website.
- Recovery of Expenses
- In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, besides any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.
- For purposes of this section, “prevailing party” means, for any proceeding, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
- Jury Trial Waiver
- Both parties hereby waive the right to a trial by jury for any dispute arising out of or relating to the Website or this agreement. Either party may enforce this waiver up to and including the first day of trial.
- Class Action Waiver
- All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless the Company agrees otherwise, the arbitrator will not consolidate more than one person’s claims. Both parties acknowledge that each party is waiving the right to participate in a class action.
- Limitation on Time to Bring Claims
- A party will not file a claim arising out of or relating to this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
- This agreement constitutes the entire agreement between you and the Company about your access to and use of the Website and its Content. It supersedes all earlier or contemporaneous agreements between you and the Company about access to the Website. A printed version of this agreement will be admissible in any proceedings arising out of (or relating to) this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and kept in printed form.
Assignment and Delegation
- The Company may assign its rights or delegate any performance under this agreement without your consent. You will not assign your rights or delegate your performance under this agreement without the Company’s advanced written consent. Any attempted assignment of rights or delegation of performance in breach of this section is void.
- The parties may waive a provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
- that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
- that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
- that if an unenforceable provision is modified or disregarded in accordance with this section, then the rest of the agreement will remain in effect as written; and
- that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
- The parties intend as follows:
Sending Notice to the Company
- You may send notice to the Company by email at firstname.lastname@example.org unless a specific email address is set out for giving notice. The Company will consider an email notice received by the Company only when its server sends a return message to you acknowledging receipt. The Company may change its contact information on one or more occasions by posting the change on the Website. Please check the Website for the most current information for sending notice to the Company.
Sending Notice to You—Electronic Notice
- You consent to receiving any notice from the Company in electronic form either (1) by email to the last known email address the Company has for you or (2) by posting the notice on a place on the Website chosen for this purpose. The Company will consider notices sent to you by email received when its email service shows transmission to your email address. You state that any email address you gave the Company for contacting you is a current and valid email address for receiving notice, and that your computer has hardware and software configured to send and receive email through the Internet.
- Sending Notice to the Company
The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond its reasonable control delays or continues to delay its performance, including:
- 1. Acts of God, including fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
- 2. War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
- 3. Fiber cuts;
- 4. Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
- 5. Failure of the telecommunications or information services infrastructure; and
- 6. Hacking, SPAM, or any failure of a computer, server, network, or software.
- The Company is not responsible for any failure to perform if unforeseen circumstances or causes beyond its reasonable control delays or continues to delay its performance, including:
No Third-Party Beneficiaries
- This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
Relationship of the Parties
- This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
Successors and Assigns
- This agreement inures to the benefit of, and is binding on, the parties and their respective successors and assigns. This section does not address, directly or indirectly, whether a party may assign rights or delegate obligations under this agreement. Section 18.B, above addresses these matters.
Consumer Rights Information—California Residents Only
This section 24.14 applies only to California residents. In compliance with Section 1789 of the California Civil Code, please note the following:
VS Media, Inc.
4607 Lakeview Canyon Rd. #338
Westlake Village, California 91361
1-800-685-9236 (USA only) 1-818-880-9021 (Outside USA)
Users who want to gain access to the password-restricted area of the Website must register. The Company does not charge consumers for registering, but the Company may charge for purchasing Content or subscriptions. You may contact the Company at email@example.com to resolve any disputes or to receive further information about the Website.
- This section 24.14 applies only to California residents. In compliance with Section 1789 of the California Civil Code, please note the following:
Complaints—California Residents Only
- You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 North Street, #501, Sacramento, California 95814, or by telephone at +1 (916) 445-1254.
- The Company encourages you to provide feedback about the Website. But the Company will not treat as confidential any suggestion or idea provided by you, and nothing in this agreement will restrict its right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
- The Company encourages you to provide feedback about the Website. But the Company will not treat as confidential any suggestion or idea provided by you, and nothing in this agreement will restrict its right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to you.
Your Comments and Concerns
You should direct all feedback, comments, requests for technical support, and other communications relating to the Website to:VS Media, Inc.
4607 Lakeview Canyon Rd. #338
Westlake Village, California 91361
1-800-685-9236 (USA only) 1-818-880-9021 (Outside USA)
In this agreement, the following usages apply:
- 1. Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
- 2. References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
- 3. References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
- 4. “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
- 5. “Including” means “including, but not limited to.”
- In this agreement, the following usages apply:
- Entire Agreement
- Litigation Election
- Account Creation