Forty Media LLC—the owner and operator—welcomes you to the Website, an adult entertainment website. It is important to us that you have the best possible experience while using the Website, and that, when you use this Website, you understand your legal rights and obligations. This terms-of-use agreement between you and us governs your use of the Website and the services we offer to you through the Website. These terms apply (1) to the entire contents of this Website (regardless whether you purchase a membership), (2) to any associated websites that we own or operate and that we grant you access to as part of your membership, and (3) to any email correspondence between you and us.
Please read these terms carefully before using our Website because they create a legally binding agreement between you and us. We ask that you pay special attention to the following provisions: (1) disclaimer of warranties (section 12); (2) limitation of liability and exclusion of damages (sections 13 and 14); (3) exclusive forum for resolving disputes (section 20); and (4) mandatory arbitration (section 21). Clicking on the “I Agree” button on the website warning page (or checking the designated box when you purchase a membership) forms your acceptance of and agreement to these terms even if you do not read them. If you do not want to accept these terms, you must leave the Website immediately. If you violate any of these terms, we will cancel your membership to the Website. We may revise these terms on one or more occasions by updating this webpage as discussed below. We will deem your continued use of the Website after we post the changes as your acceptance of the changes.
1. Description of Service; Age of Majority; & Age and Legal Certifications
1.1 This Website provides online, interactive video, audio, and live content that is pornographic in nature. By accessing this Website, you may see graphic depictions, nudity, adult language, and descriptions of explicit sexual activity, including heterosexual, bisexual, homosexual, and transsexual situations of a sexual nature. The Website offers certain services free of charge to guests. These include access to our online picture galleries, free live guest chat, and unlimited access to performer profiles. Certain other, private services require a subscription to the Website. These services include access to the uncensored live video chat. Performers who operate on this Website are independent contractors, operating out of their home or an independent webcam studio. These performers have the option of charging private rates for access to their nude, uncensored video chat rooms (“private chat”). The fee charged in these rooms is prominently disclosed before entering the fee-based chat room. However, free live video chat is unavailable to all members as long as the performer is not involved in private chat.
1.2 We do not intend anyone under 18-years old or the age of majority in their community to view this Website. We limit membership and access to the Website to adults (1) who are at least 18-years old and (2) who have reached the age of majority in their community. If you are not the age of majority in your jurisdiction, you may not access the Website, and must leave the Website immediately.
1.3 By accessing the Website or purchasing a membership, you certify to us that:
1.3(A) You have reached the age of majority where you live and that you have the legal capacity to agree to these terms;
1.3(B) If purchasing a membership, you own (or have permission to use) the credit card you signed up with and have authorized us (or our authorized payment processing agent) to charge the credit card according to the membership you chose (which may include automatically recurring charges on a month-to-month basis until canceled);
1.3(C) You are aware of the pornographic nature of the content provided by the Website and that you are not offended by this content;
1.3(D) You are familiar with your jurisdiction’s laws affecting your right to access adult-oriented materials;
1.3(E) You have the legal right to access adult-oriented materials and we have the legal right to transmit them to you;
1.3(F) You are voluntarily requesting adult-oriented materials for your own private enjoyment; and
1.3(G) You will not share these materials with a minor or otherwise make them available to a minor.
2. No Child Pornography
All persons who appear in any visual depiction of actual or simulated sexually explicit conduct found on the Website were 18-years old or older at the time of the creation of the depictions. The Website contains no child pornography. We take a strong and definite stand against child pornography and only publish visual media of consenting adults for consenting adults. If you see any visual media, real or simulated, depicting minors engaged in sexual activity within the Website, please report this to us at firstname.lastname@example.org. Please include with your report any appropriate evidence, including the date and time. We will immediately investigate all reports and take appropriate action. We fully cooperate with any law-enforcement agency investigating child pornography. If you suspect other outside websites are participating in unlawful activities involving minors, please report them to www.asacp.org.
3. Limited License
3.1 We grant you a limited, nonexclusive, nontransferable license to access the Website and its content according to these terms. By “access,” we mean visit the Website, use its services, and view or download its content. You must comply—and you agree to comply—with all applicable laws when accessing the Website. We reserve the right to change, limit, or cancel your access if you fail to comply with these terms.
3.2 You may only access the Website for your personal, noncommercial use. You will not use any content that you access on the Website for further distribution, performance, display, sale, or rental. You will not make any content available on any peer-to-peer network, file sharing service, or other system for sending information to others. Finally, you will not solicit any other members or performers for services, including soliciting memberships to other websites or similar services. Doing any of this will subject you to immediate civil and criminal liability—we will sue anyone engaging in commercial solicitations on this Website.
4.1 Username and Password. To fully access the Website, you must purchase a membership. On purchasing a membership, you will receive a unique username and password to access the members’ only area of the Website. You must keep your username and password confidential; we will hold you responsible for all activity initiated under your username and password. For example, if you allow another person to use your username and password, we will hold you responsible for any charges they incur. You will not allow anyone under 18-years old or the age of majority where you live, whichever is older, to use your username or password or access the Website. If we discover that you have done this, we may immediately cancel your access to the Website without advanced notice. Please contact us immediately if you know or suspect that someone is using your username or password without your authorization. You will need to give us all information you have about the unauthorized use and cooperate fully with us in investigating the matter. We may request that you adopt additional security procedures when accessing the Website in the future to prevent further unauthorized use.
4.2 No Username or Password Sharing. Your username and password are for your personal use only. You will not share them with any other person. Sometimes multiple access is not your fault—like when hackers try to compromise the Website by bundling multiple users with the same username or password. Regardless of the reason, we cannot allow multiple persons to use the same username and password, and the Website has several techniques to detect unauthorized multiple use. If we discover that multiple persons are using your username or password, we may block your access to the Website through your username or password without giving you advanced notice. However, we will promptly send you a new username or password to the email address you signed up with to allow you to regain access to the Website. We will not be responsible for, and will not refund any membership fee because of any down time or inability to access the Website that you experience because of the username or password change.
4.3 Trial Period–Fee Conversion. We may allow you to access the Website for a limited trial period for a reduced fee. You may cancel before the end of the trial period. If you sign up for a trial period at a reduced rate, we will automatically convert you to a regular monthly membership at the monthly membership fee (which we will tell you about at signup) unless you affirmatively cancel your membership before the end of the trial period. You can cancel your trial membership in the manner described in section 5.1. Credit card users may be subject to a preauthorization. The preauthorization is not a charge to the credit card. But the applicable monthly membership charge may be reserved against your available credit card limit. You will not hold us responsible for bank charges, fees, or penalties because of overdrawn or delinquent accounts. Please contact your credit card issuing financial institution for details. Prepaid gift and debit cards that cannot be preauthorized for the full applicable monthly rate may be charged incrementally. This means that multiple charges for less than the full applicable monthly rate may occur within the same monthly billing cycle. However, the aggregate of these incremental charges will not exceed the full applicable monthly rate.
4.4 Membership Fee; Recurring Memberships. This Website is a fee based service. We charge monthly subscription rates for access to certain private areas and additional surcharges on a “pay for play” basis. These surcharges are clearly disclosed before purchasing. Please pay attention to the price that appears on the join page. Do not rely on the representations of other websites, webcam models (i.e., performers), or anyone or anything else other than our actual payment page. For your convenience, memberships will automatically renew on expiration at the same price unless you cancel your membership before your current membership period expires. Paying your membership fee entitles you to access the entire Website and its content—except specialty content where we may ask you to pay an additional access or download fee. The membership fee starts with the amount stated as the full membership fee when you signed-up to join the Website and not the fee for any trial period you purchased. The membership fee excludes any taxes or currency transmission charges, which are extra costs charged to you. We reserve the right to change the membership pricing without notice, but the price you paid for your membership will never increase as long as your membership remains active.
4.5 Billing and Payment. We will bill the membership fee for the term you signed up for in advance using the billing method you selected when you signed-up or you later request us to use. We will automatically rebill memberships at the end of each term until cancelled according to these terms. You authorize our payment-processing agent or us to make these charges using your selected billing method. For payment by credit or debit card, you must ensure that all your credit or debit card information is current and accurate, and inform us of any change in your billing address, card number, or expiration date. You must promptly notify us if your credit or debit card is cancelled, lost, or stolen—or if there is an unauthorized use of your username or password—because we will charge you for all access under your password. We may cancel your membership and access to the Website if we cannot charge your credit or debit card. By giving us your credit or debit card number, you authorize us to submit all charges to your credit or debit card without further approval from you until you give us notice that you have cancelled your membership or wish to change your payment method and we have had a reasonable time to respond.
4.6 Specialty Content. In some cases, we may charge an additional fee to access or download specialty content. If there are any additional terms or charges for any specialty content, we will identify them up front and require you to agree to them before purchasing. Unless you tell us otherwise in each case, you authorize us to make charges for any specialty content to the credit card, debit card, or other payment method you use to pay your membership fee. Any prices shown for access or downloading specialty content are subject to change without notice. No prices are final until you pay for and we approve your purchase.
4.7 Billing Providers. The Website uses multiple billing providers to process credit card transactions. Neither the billing providers nor any person or company related to the billing providers hold any ownership interest in this Website, nor receives any financial benefit from this Website, other than a fee paid by the owner of this Website to the billing provider for the services performed by the billing provider. The billing provider has no control over the Website, or any of the design, layout, content, subject matter, products, services, or persons that appear on or that are linked to the Website, or the geographical areas into which it may disseminate, broadcast, or permit the downloading of or access to the content or services offered by the Website.
4.8 Changing Your Billing Method. You may request us to change your billing method by sending us written notice according to these terms. If we receive notice more than 10 days before your billing date, we will make the changes effective as of your next billing period. Otherwise, we will try to make the change as soon as possible.
4.9 Billing Errors. We will correct any mistakes in a bill and add or credit them against your future payments. If you become aware of any errors in billing, please notify us promptly for proper credit. We will waive any error in your favor that we do not correct within 6 months of the bill where the error first appeared. You will waive any error in our favor unless you give us notice of the error within 9 months after you receive the bill in which it first appears. You also release us from all liability for any error you do not report to us within 9 months after you receive the bill in which the error first appeared.
4.10 Refunds. We do not issue refunds unless there are extenuating circumstances that we feel warrant a refund. These may be things like the website not working properly for some reason. In cases like these, we will issue refunds after investigating on a case-by-case basis. We will take into consideration things such as other complaints received or other customer comments. We do not guarantee satisfaction and we will not consider dissatisfaction with the Website or simply buyer’s remorse as grounds for a refund. To request a refund, you must contact our customer service department by using the email form located at www.40Media.biz/support. Phone representatives cannot provide refunds.
5.1 Your Right to Cancel. You may cancel your membership for any reason online with the billing provider that you signed up through (Epoch.com, CCBill, or other authorized agent disclosed on the “join page” of the Website). You will receive written confirmation of cancellation, which you should retain for your records. If you do not receive written confirmation of cancellation within 24-hours of your request, please contact us immediately at email@example.com. After you cancel, you will continue to have access to the Website until your membership term actually expires. Cancellation of your membership will not alter your obligation to pay all outstanding charges made to your account.
5.2 Our Right to Cancel. We may cancel your membership or suspend your access to the Website for any reason. But if we cancel for any reason other than your breach of these terms, we will refund a pro-rata amount of any payments you have made for the portion of any month you do not use. If your credit card provider seeks return of any payments you previously made to us, but we believe in good faith you are liable for the charges, we may, subject to applicable law, seek payment from you for the amounts due.
We appreciate and welcome any suggestions that you may have to improve the Website. You may send us any suggestions that you may have to us by email at firstname.lastname@example.org. You agree that we can use any idea or suggestion you give to us royalty-free, worldwide, and in perpetuity without any attribution or compensation to you. We have no obligation to keep any suggestion you submit to us confidential.
7. Third-Party Links
7.1 This Website may contain links to other websites operated by other entities that are completely independent from us. These linked websites are not under our control and we are not responsible for their contents or links. Including a link on this Website does not imply our endorsement of any linked website or its contents.
7.2 If you access any of these linked websites, you will leave this Website. If you decide to visit any linked website, you do so at your own risk and subject to any terms and privacy policies posted on the linked websites. We encourage you to review the terms and privacy policies posted on all linked websites. Regardless, it is your responsibility to take all protective measures to guard against viruses or other destructive elements.
7.3 We disclaim any liability (direct or indirect) to you for any loss caused by your use or reliance on the content, goods, or services available on or through any linked website. You should contact the website administrator or webmaster for those third-party websites if you have any concerns regarding the links, content, or services on those websites.
8. Intellectual Property Rights
8.1 We own or have the license to use all text, graphics, user interfaces, visual interfaces, photographs, videos, trademarks, logos, sounds, music, artwork, and computer code, including the design, structure, selection, coordination, expression, “look and feel,” and the arrangement of this content, contained on this Website. Trade dress, copyright, patent, and trademark laws, and various other intellectual property rights and unfair competition laws protect the Website and its content.
8.2 You may only access the Website or its content according to these terms and any specialty content terms. You will not make any other use of the Website or its content, including by copying, modifying, accessing, distributing, or performing any content. You will not reproduce, imitate, or use the Website’s trademarks in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits the Website. If you do any of the previous, your actions may constitute an infringement of our rights or the rights of third parties.
8.3 We neither endorse nor recommend the owner of any trademarks we display on the Website. In addition, our use of trademarks or links to websites owned by third parties does not imply, directly or indirectly, that those owners endorse or have any affiliation with this Website.
9. Member Conduct; Chat Room Rules
9.1 You state that all information you provided to us is accurate and current. You will promptly update this information when necessary to ensure that it remains true. You acknowledge that you have the capacity to consent to these terms and to perform the acts required of you under these terms.
9.2 As a condition of your use of the Website:
9.2(A) You will not use the Website for any unlawful purpose or in any way that is prohibited by these terms;
9.2(B) You will comply with all applicable laws and regulations of any applicable governmental body;
9.2(C) You will not use the Website in any way that exposes us to criminal or civil liability;
9.2(D) You will not use the Website for making, obtaining, or otherwise accessing illegal copies of copyrighted content;
9.2(E) You will not use the Website to submit, publish, display, disseminate, or otherwise communicate any defamatory, inaccurate, abusive, threatening, offensive, or illegal material to any other member or user of this Website;
9.2(F) You are solely responsible for all acts and omissions that occur because of your use of the Website;
9.2(G) You will maintain the security of your username and password and be fully responsible for all use of your account;
9.2(H) You will not use or attempt to use any other member’s account on the Website without permission;
9.2(I) You will not use any automated means—including robots, crawlers, or data mining tools—to download, monitor, or use data or content from the Website;
9.2(J) You will not use the Website to collect usernames or email addresses for sending unsolicited messages of any kind;
9.2(K) You will not take any action that imposes, or may impose, an unreasonable or disproportionately large load on our technology infrastructure or otherwise make excessive demands on it;
9.2(L) You will not “stalk” or otherwise harass anyone on the Website;
9.2(M) You will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any information you transmit;
9.2(N) You will not disable, circumvent, or otherwise interfere with security related features of the Website, features that prevent or restrict use or copying of any content, or features that enforce limitations on the use of the Website or the content on it;
9.2(O) You will not post, link to, or otherwise make available on the Website any content that contains software viruses or any computer code, file, or program designed to interrupt, destroy, limit, or monitor the functionality of any computer software or hardware or any telecommunications equipment;
9.2(P) You will not commercially exploit or make available the Website or its content to a third party;
9.2(Q) You will not “frame” or “mirror” the Website; and
9.2(R) You will not reverse engineer any part of the Website.
9.3 You are entirely responsible and liable for all activities conducted through your account. The following are some, though not all, of the violations that may result in our terminating your membership. You will not do any of the following actions while using the chat room (including private chat):
9.3(A) Harass, threaten, embarrass, or cause distress or discomfort to another chat room participant (including the performer), user, or other individual or entity;
9.3(B) Transmit via chat room any information, data, text, files, links, software, communication, or other materials that we reasonably consider to be unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, or racially, ethnically, or otherwise objectionable;
9.3(C) Cause any room screen to “scroll” faster than other users are able to type to it or any action to a similar disruptive effect;
9.3(D) Impersonate any person, including but not limited to a performer;
9.3(E) Disrupt the normal flow of dialogue in a chat room or otherwise act in a manner that negatively affects other participants;
9.3(F) Intentionally or unintentionally violate any applicable local, state, national, or international law, including but not limited to any regulations having the force of law while using or accessing chat room or in connection with your use of chat room in any manner; or
9.3(G) Post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation in the chat room, except in those areas that are designated for such a purpose.
9.4 We reserve the right to take appropriate action against you for any unauthorized use of the Website, including civil, criminal, injunctive relief, and cancellation of your membership. An unauthorized use of the Website and our computer systems violates these terms and certain international, foreign, and domestic laws, including the Computer Fraud and Abuse Act.
10.2 We may use software that automatically tracks performance and usage information to evaluate the Website. This software will not personally identify you.
11. Modifications and Interruption to Service
11.1 We reserve the right to modify or discontinue this Website with or without notice to you. If we discontinue this Website and our decision to discontinue is not because of your breach of these terms, we will refund to you a pro-rata amount of any payments you have made for the portion of any month you do not use. We will not be otherwise liable to you or any third party if we exercise our right to modify or discontinue the Website.
11.2 You acknowledge that we do not guarantee continuous, uninterrupted, or secure access to this Website and numerous factors or circumstances outside of our control may interfere with or adversely affect our operation of this Website.
12. Warranty Disclaimers
12.1 We provide you access to this Website and its content “as is,” “with all faults,” and “as available.” You assume the entire risk for satisfactory quality, performance, accuracy, and effort. We make no warranty that the Website or any content will meet your needs or requirements. We disclaim all warranties—express, statutory, or implied—including warranties of merchantability, fitness for a particular purpose, workmanlike effort, accuracy, completeness, reliability, security, title, exclusivity, quiet enjoyment, noninfringement, and warranties that your access to the Website will be uninterrupted, error-free, or that content loss will not occur. There are no warranties of any kind that extend beyond the face of these terms or that arise because of course of performance, course of dealing, or usage of trade.
12.2 The Website may contain errors, omissions, inaccuracies, or outdated information. We do not warrant the reliability of any statement or other information displayed or distributed through the Website. We reserve the right to correct any errors or omissions in any portion of the Website. If you believe you have found errors or omissions on the Website, you may bring them to our attention by contacting our customer service department at email@example.com.
13. Additional Liability Disclaimers
13.1 In your access to the Website, we are not liable to you for:
13.1(A) Any information, comments, or material you receive that is infringing, inaccurate, obscene, indecent, threatening, offensive, defamatory, invasive of privacy, or illegal;
13.1(B) Any third party’s unauthorized access to or alterations of your account, transmissions, or data;
13.1(C) Any viruses or other disabling code that may infect your computer or affect your access to (or use of) the Website, your other services, hardware, or software;
13.1(D) Any incompatibility between the Website and your other services, hardware, or software; or
13.1(E) Any delays or failures you may experience in initiating, conducting, or completing any transmissions to or transactions with the Website.
14. Limitation of Liability and Exclusion of Damages
14.1 Unless caused by our gross negligence or willful and wanton misconduct, we limit our total liability to you for any claims arising from these terms or your access to the Website solely to your incidental and direct damages, if any. However, our total liability to you will not exceed the greater of $250 or the total amount you paid us for your membership during the 12-month period before you made your claim. Recovery of these damages will be your sole and exclusive remedy. We disclaim any liability for any other damages of any kind arising out of these terms or your access to the Website.
14.2 Unless caused by the other’s gross negligence or willful and wanton misconduct, neither party will be liable to the other party for any special, indirect, incidental, consequential, exemplary, or punitive damages arising out of these terms or the Website. This exclusion applies even if the other party knew or should have known about the possibility of the damages.
14.3 The mutual exclusion of special, indirect, incidental, consequential, exemplary, or punitive damages is independent of your exclusive remedy and survives even if your exclusive remedy fails of its essential purpose or a court or tribunal of competent jurisdiction otherwise deems your exclusive remedy unenforceable.
14.4 The limitations and exclusions in this section apply regardless of the theory of liability asserted (whether strict liability, breach of warranty (express or implied), breach of contract, tort, or any other legal theory).
15. Scope of Disclaimers
The disclaimers, exclusions, and limitations contained in sections 12, 13, and 14 apply to the maximum extent permitted by applicable law, but no more. They are not intended to deprive you of any mandatory protections provided to you under applicable law. Because some jurisdictions may prohibit the exclusion or limitation of certain warranties, liability for consequential damages, or other matters, some or all of the disclaimers, exclusions, or limitations may not apply to you.
16. Loss Payment (also known as Indemnification)
16.1 In General. You must pay us for any loss of ours that you caused by your negligence, intentional misconduct, or violation of these terms. But you need not pay us for a loss caused by our gross negligence or intentional misconduct.
16.2(A) Loss means an amount that we 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 or recovery; and includes incidental, direct, and consequential damages.
16.2(B) A loss is caused by an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
16.3 Legal Defense of a Claim. We have control over defending a claim for a loss (including settling it), unless we direct you to control the defense. You and we must cooperate with each other in good faith on a claim.
16.4 No Exclusivity. Our rights under this section do not affect other rights we might have.
17. Limited Time to Bring Claims
A party to these terms must bring any claim that party may have against the other party that arises out of these terms or the Website within 1 year after the claim arises. If a party fails to bring any claim that party may have against the other party within this 1-year period, the claim is permanently barred.
18. Compliance with Laws
You assume all knowledge of applicable law and are responsible for compliance with these laws. You will not access the Website if prohibited in your jurisdiction or use the Website in any way that violates applicable governing laws, regulations, or other government requirements. You will not transmit any content that encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violates any applicable governing law or regulation.
19. Governing Law
Delaware law governs these terms without regard for any choice-of-law rules that might direct the application of the laws of any other jurisdiction. The predominant purpose of these terms is providing services and licensing access to intellectual property and not a “sale of goods.”
20. Place for Resolving Disputes
20.1 Except for disputes subject to arbitration, all disputes arising under these terms or regarding the Website will be subject to the exclusive jurisdiction and venue of the courts in the State of Delaware. The parties submit to the personal jurisdiction of the courts in Delaware to resolve all disputes. The parties agree that the exclusive venue and forum to resolve all disputes will be in the courts in Delaware, and waive any right to seek another venue because of improper or inconvenient forum.
20.2 The parties acknowledge that the Website will be deemed solely based in the State of Delaware, and that the Website will be deemed a passive website that does not give rise to personal jurisdiction over the Website, either specific or general, in any other jurisdiction.
21. Dispute Resolution; Exception for Small Claims
21.1 In General. Each party will allow the other reasonable opportunity to comply before it claims that the other has not met the obligations under these terms. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to these terms.
21.2 Litigation Election. Either party may elect to litigate the following type of case or controversy: (a) an action seeking equitable relief; (b) any claim that meets the jurisdictional requirements for small claims court and is brought in small claims court; or (c) a suit to compel compliance with this dispute resolution process. The Website may elect to litigate billing or payment disputes or collection matters.
21.3 Mediation. The parties may elect to engage in nonbinding mediation as a first alternative to arbitration or litigation. An election must be mutual and reflected in in a writing signed by both parties. 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 otherwise agree in a writing signed by the party agreeing to bear the costs.
21.4(A) On 30 days written notice, either party may submit disputes arising out of or related to these terms to binding arbitration by a single arbitrator with a professional arbitration service acceptable to the parties. If the parties cannot agree on an arbitration service, the arbitration will take place under the American Arbitration Association Commercial Arbitration Rules and Mediation Procedures. The parties will bear equally the costs of the arbitration, including the fees and expenses of the arbitrator; each party will bear the costs associated with its case. The arbitration will take place in Delaware.
21.4(B) This section and the arbitrator’s authority to grant relief are subject to (1) the Federal Arbitration Act, 9 U.S.C. §§ 1–16; (2) the provisions of these terms; and (3) the American Arbitration Association Code of Ethics for Arbitrators in Commercial Disputes. The arbitrator may not award punitive or exemplary damages, or damages otherwise limited or excluded in these terms, and the arbitrator’s decision will be final and binding. Any court of competent jurisdiction may confirm and enforce the arbitrator’s award. The Federal Arbitration Act will govern any post-award proceedings.
21.5 Waiver of Jury Trial. Both parties agree that as part of their consideration for these terms, they waive the right to a trial by jury for any dispute arising between the parties related to the subject matter of these terms. The parties further agree that this waiver will be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this section are waived.
21.6 Exception for Small Claims. As an alternative to arbitration, you may pursue your claim in a small claims court in your jurisdiction of residence, if the claim meets all of the requirements for the small claims court. If you elect to file a small claims action, the matters raised in the small claims action will not be subject to arbitration unless the small claims action is removed from the jurisdiction of the small claims court and the removal is not made to circumvent the small claims exception.
22. Class Action Waiver
Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the advanced written consent of all parties to all affected arbitrations or proceedings.
23. Rights to Injunctive Relief
Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation if the other party violates these terms, and that an aggrieved party may seek injunctive relief if a violation occurs, in addition to seeking all other remedies available at law or in equity.
24. General Provisions
24.2 Copy of these Terms. You may—and we recommend that you—print these terms on your printer or save them to your computer. If you are having trouble printing a copy, please contact us at firstname.lastname@example.org and we will email you a copy.
24.3 Modifications. We may modify these terms on one or more occasions. We will try to post changes on the Website at least 15 days before they become effective. Changes will become effective on the effective date noted at the top of the modified terms. It is your responsibility periodically to check the Website to review the most current terms. While we will try to notify of any changes to these terms, we do not assume an obligation to do so. By continuing to use the Website after we post changes to these terms, the modified terms will bind you even if you have not actually read them. If you do not agree to the changes, your exclusive remedy is to cancel your membership if you are a member or to stop accessing the Website if you are not a member. If you need more information about the changes or have any other questions or comments about the changes, please contact us at email@example.com.
24.4 Assignment. We may assign these terms to an affiliate or third party without notice to you. You will not assign, delegate, or sublicense any of your rights or duties without our advanced written consent. Any attempted assignment in violation of this provision will be void.
24.5 Waiver. If we do not enforce any right or provision in these terms, that is not to be deemed a waiver of our right to do so in the future.
24.6 Severability. If any provision of these terms is for any reason held unenforceable, that provision will be modified to the extent necessary to make it enforceable without losing its intent. If no modification is possible, that provision will be severed from the rest of these terms.
24.7 Cumulative Remedies. All rights and remedies provided in these terms are cumulative and not exclusive, and the assertion by a party of any right or remedy will not preclude the assertion by the party of any other rights or the seeking of any other remedies available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
24.8 Successors and Representatives. These terms bind and inure to the benefit of the parties and their respective heirs, personal representatives, successors, and (where permitted) assignees.
24.9 Force Majeure. We are not responsible for any failure to perform because of unforeseen circumstances or causes beyond our reasonable control, including:
24.9(A) Acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters;
24.9(B) War, riot, arson, embargoes, acts of civil or military authority, or terrorism;
24.9(C) Fiber cuts;
24.9(D) Strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials;
24.9(E) Failure of the telecommunications or information services infrastructure; and
24.9(F) Hacking, SPAM, or any failure of a computer, server, network, or software for so long as the event continues to delay our performance.
24.10 Expenses and Costs of Enforcement. If a court or tribunal of competent jurisdiction determines that a party violated these terms, the breaching party will reimburse the nonbreaching party for all actual costs and reasonable attorney fees incurred in enforcing these terms.
24.11(A) Sending Notice to Us. You may send notice to us by email, by calling our customer service department, or by writing to us at the locations shown on the Website. We will consider an electronic notice received by us only when our server sends a return message to you acknowledging receipt. We may change our contact information by posting the change on the Website. Please check the customer support area of the Website for the most current information for sending notice to us.
24.11(B) Sending Notice to You—Electronic Notice. You consent to receiving any notice from us in electronic form either: (1) by sending email to the email address you specified when you signed up; or (2) by posting the notice on a location on the Website designated for this purpose. We will deem notices sent to you by email received when our email service indicates transmission to your email address. You confirm that the email address you specified when you signed up 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 and to print any email message you receive. You may change this consent and request paper notice by normal postal delivery, but if you do, we may cancel your membership because of the increased costs. If we do agree to send postal notice, we may collect the reasonable cost and postage for sending postal notice.
24.12 Authorization and Permission to Send Emails to You. You authorize us to email you notices, advertisements, and other communications to you, including emails, advertisements, notices, and other communications containing adult oriented material, sexual content and language, and images of nudity not suitable for minors. This authorization will continue until you request us to remove you from our email list.
24.13 Electronic Communications Not Private. We do not provide facilities for sending or receiving confidential electronic communications. You should consider all messages transmitted to us or from us as open communications readily accessible to the public. You should not use the Website to send or receive messages you only intend the sender and designated recipients to read. Users or operators of the Website may read all messages you send to the Website regardless if they are intended recipients.
24.14 Electronic Signatures. You agree to be bound by any affirmation, assent, or agreement you transmit through this Website. You agree that when in the future you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your mouse, keystroke, or other computer device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
24.15 Consumer Rights Information—California Residents Only. This provision applies only to California residents. In compliance with Section 1789 of the California Civil Code, please note the following:
Forty Media LLC
c/o Agents and Corporations, Inc.
One Commerce Center
1201 Orange Street, Suite 600
Wilmington, Delaware 19801
Users who wish to gain access to the members-only section of the Website must be a member in good standing. We post the current membership fees for the Website before the registration page for the Website. We reserve the right to change the membership fees. You may contact us at firstname.lastname@example.org to resolve any billing disputes or to receive further information about the Website.
24.16 Complaints—California Residents. You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
In these terms, unless otherwise stated or the context otherwise requires, the following usages will apply:
25.1 Actions permitted under these terms may be taken at any time and from time to time in the actor’s sole discretion.
25.2 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.
25.3 References to numbered sections in these terms also refer to all included sections. For example, references to section 6 also refer to sections 6.1, 6.1(A), etc.
25.4 In computing periods from a specified date to a later specified date, the words “from” and “commencing on” (and the like) mean “from and including,” and the words “to,” “until,” and “ending on” (and the like) mean “to but excluding.”
25.5 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.
25.6 “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.
25.7 “Including” means “including, but not limited to.”